author: Dugro, J. Sedgwick, J. Truax, J.

text:
    William J. Reilly, Resp’t, v. The Mayor, Aldermen and Commonalty, etc., App’lts.

      (New York Superior Court, General Term,

      Filed May 18, 1887.)

    New York (city of)—Contract—Lowest bidder for work under— Proper method of ascertaining—Laws 1882, Ch. 410, § 64.
    Laws of 1882, Ch. 410, § 64, provided relative to work to be done for the city of New York, that all contracts shall be awarded to the lowest bidder. Held, that there was no warrant in law for making estimated quantities of the respective classes of work to be done factors in the determination of the question as to who was the lowest bidder for public work, that the lowest bidder for the contract was intended. Truax, J., dissenting.
    Appeal by defendants from judgment at trial term, entered in favor of plaintiff against the defendants.

      D. J. Dean, for app’lt; Wallace MacFarlane, for resp’t.
   Dugro, J.

Section 64 of chapter 410 of Laws of 1882, provides that all contracts shall be awarded to the lowest bidder. The lowest bidder for the work actually to be done is intended, and not the lowest bidder for an estimate of the work to be done.

The contractor Reilly was certainly not the lowest bidder for the work provided for by the contract in the matter before us; for in this case only an estimate of the quantities of material to be removed was obtained, and these estimated quantities were relied upon as factors in determining the lowest bidder, the actual work to be done was no factor whatever in the determination. .

Some of the bids for the estimated quantities of rock and earth, etc., were as follows:

Cubic yard, Lin. ft. Sq. yds.
Earth. Rock. Curb. Flag. Total.
W. E. Dean................ $0 35 $1 45 $0 78 $0 36 $20,672 12
M. H. Foley................ 1 78 004 004 004 12,848 32
John B. Devlin.............. 70 1 25 55 22 20,782 Ó0
Wm. A. Gumming.......... 95 2 20 65 27 32,487 40
R. J. Hills.................. 65 1 35 75 30 22,955 0»
Wm. Phelan................ 40 1 60 65 26 23,131 00
John Slattery............... 68 1 75 65 26 26,891 00-
Thomas E. Grimmins........ 50 1 75 60 25 24,909 40
Wm. J. Reilly. ?............ 1 69 01 01 01 12,336 64

The amounts of these bids as tested by the actual quantities of rock, earth, etc., were:

W. E. Dean................................. $15,309 50
M. H. Foley................................. 27,121 47
John B. Devlin....................'.......... 19,681 24
Wm. A. Gumming........................... 28,960 54
R. J. Hills................................... 21,31185
Wm. Phelan................................. 18,220 37
John Slattery................................ 23,472 06
Thomas E. Grimmins......................... 20,045 85
Wm. J. Reilly............................... 25,255'23

The lowest bidder, therefore, for the actual work to be done, was W. E. Dean.

There is no warrant in law.for making estimated quantities of the respective classes of work to be done factors in the determination of the question as to who the lowest bid- ' der is for public work, the lowest bidder for the contract (not the presumed lowest bidder) is the bidder intended by the statute. Section 64 of chapter 410, Laws of 1882.

It is unnecessary to say that if the work were all of one class, as the removal of earth, or of a mass as a mass, no trouble would arise in determining the lowest bidder, but when it is proposed, as in the case at bar, to make one contract which shall provide for the removal of a mass made úp of earth and rock, in unknown proportions a difficulty arises. For then it is apparent that if there is a price fixed for the removal of rock, the only manner in which the question can be determined^ in the method adopted by the city officials in this case, is by a computation in which the respective prices for earth and rock removal, and the respective quantities of earth and rock will be the factors. And if it is not possible to determine the proportions of' the earth and rock no determination of the question can be made.

The method adopted in the case at bar of estimating the respective proportions of earth and rock, and making the amounts of these estimated quantities factors in the determination of the question, is manifestly no solution; it is a mere conjecture dependent for its verity upon whether the estimates be correct or not.

The lowest bidder for the actual work to be done is intended, and not the lowest bidder on the estimated quantity of work to be done. Appleby v. The Mayor, 15 How. Pr. Rep., 428.

The party aggrieved was employed in contravention of the'policy and terms of the statute. He could-not contract with the city except through its authorized agents, and he is chargeable in law with notice of the limitations of official authority imposed by general laws. Donovan v. The Mayor, etc., 33 N. Y., 293; McDonald v. The Mayor, etc., 68 id., 23.

To make a contract for removing a mass containing unknown proportions of rock and earth, it is not necessary to resort to such a system as was adopted in the case at bar.

Many lawful methods of contracting for the work suggest themselves to our minds, in which the lowest bidder for the work actually to be done can be ascertained with certainty.

The object of the statutes and ordinances was to invite real competition for work and to secure its performance for the lowest price which fair and real competition would produce. Matter of Ralph Marsh, 83 N. Y., 434.

The system adopted in the present case is neither sanctioned by law nor warranted by necessity; it is permissive of pernicious and dangerous results, and could never have been intended to be authorized by law.

We have now before this court a case (before us on another point) wherein under this system of accepting a lowest bidder for estimated quantities as the lowest bidder for a contract, one whose bid (by a computation based on estimated quantities of earth and rock and the bidders’ prices for their removal per cubic yard) was $15,526.28, and who, by the application of his figures to the actual quantities as they were, ascertained on the completion of the work, received from the city $117,395.68, while the reasonable cost of doing the work was $26,541.79.

It will probably be claimed that, as the city stated its estimate of the respective quantities, and then called for estimates of price per cubic yard only, for the various works to be done, with notice that it would not be bound as to quantities, no injustice could be done by an award; in other words, that all the bidders knowing that the estimated quantities were to be factors only in ascertaining the lowest bidder, were aware that they must determine for themselves the actual quantities. Such reasoning is plausible but specious, and cannot control this court. The estimated quantities were used as though they were the true quantities in the letting of the work, and the city was thereby made a party to a venturesome speculation far removed from the letter and the spirit of the law. A bidder’s figures will of necessity be fixed by him with regard to the proportionate quantities of earth and rock as he believes them to exist; and his selection of factors in the determination of the award will be such as will make his bid in amount as he desires, while the factor he selects may be such as will cause the city to pay the highest possible price for the variance between the quantities as estimated by the city and the quantities as they actually exist.

_ No authority was given by the act to the common council to adopt any ordinance or regulation which should in any way interfere with or prevent the ascertainment of the lowest bidder for the contract, that is for the .actual quantity of any public work to be done, or which would leave the determination of such a lowest bidder to chance or conjecture.

Any system of letting contracts for such public work is illegal which necessitates the determination of the “lowest bidder” by conjecture, when it is possible to let a contract for the same work to a “lowest bidder” in whose selection no element of chance enters. The disposition of this question makes it unnecessary to consider the others raised by the appeal.

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

Sedgwick, J.

I agree with Judge Dugro in his opinion.

The statute provides that the head of the department shall award thé contract to the lowest bidder. Of course, the bidding must refer to the work to be done. If the basis of ascertaining who is the lowest bidder be an estimate of quantities or specification, they are used on the assumption that they correctly describe, in an approximate way, the work to be done.

The necessary implication in the statute is, that means shall be used that are adequate to ascertain who is the lowest bidder. A bidder must abide the true construction of the statute, as well as the city officials. He who claims to be the lowest bidder must justify his claim by the fact that he was lowest bidder, as ascertained according to the statutory intent.

The statute requiring in substance that it shall appear who is the lowest bidder, there can be no award of the contract if, after considering all the contingencies, it appears that one of several may be the lowest bidder but that it is impossible to fix upon the one who is.

One of the implied conditions of the statute is, that if ■estimates and specifications be used, they are to be shaped so that a calculation upon them will be more or less, that is, disregarding inevitable and relatively unimportant inaccuracies, the same as if a calculation were made as to the work when done.

If it should appear, as in this case it does appear, that one of the bidders is lowest only on the assumption that the estimate properly describes the work and that another is the lowest, if the estimate does not properly describe the work, a decision would turn on the character of the estimate. Under the statute it is not too late to prevent a contract being awarded illegally because the insufficiency of the estimate is discovered or rather recognized for the first after biddings are opened. The question would be, does it appear that the estimate is an approximate description of the work or does it appear that it cannot be affirmed that it is an approximate description because it is no statement of things known to be facts, but it is only a guess as to the facts.

This must be determined by a comparison of the statements of the estimate with the facts of the proposed improvement. An estimate does not import in itself and conclusively absolute verity. Its value as helping to ascertain who is the lowest bidder, does not arise from its being made, but from its correspondence with the work to be done.

Testimony as to the proposed improvement might show that it was possible to make a proper estimate and that such was not made, or that it was not possible to make such, and that therefore the estimate as made offered no means of concluding whether a bidder upon its terms would he the lowest bidder for the work, in fact, to be done.

The truth as to the estimate in the present case is that it was very far from an approximately correct description of the work. The work done of excavation was of 18,973 cubic yards. The estimate called for the excavation of 16,000 cubic yards. There were in fact 15,033 yards of earth excavated. There were 3,943 yards of rock excavated, The estimate named 9,000 yards.

The official who made the estimate was in ignorance of the quantity of work to be done and of the proportion of rock and earth. He and no one, could say, that the estimate was correct. He could not believe that it was. At the best it was a guess. These things appear in the facts and documents in testimony on the trial, and the defendant was not allowed to give testimony as to the facts of the proposed improvement, that would have helped to determine the character of the estimate as a description of the work to be done.

_ If on all the facts it should be inferred, that the quantities of the estimate were only guesses which might or might not turn out to be true, then I am of opinion, that as matter of law it was illegal and against the statute to find that the plaintiff, rather than others, was the lowest bidder. It was matter of chance at that time as to who was the lowest bidder. Jones v. Randal, Cowp., Vol. 1, 37, W.

It is argued that such a train of reasoning disregards the-fact that in estimates made before the awarding of the-contract, there niust be uncertainty. This is true, but that kind of uncertainty is not the result of an omission to use-the best means of making certainty as great and uncertainty as slight as is practically possible. In the present-case, the facts may show that proper means were not used to make the estimate certain to any extent, but that as to rock and earth it was altogether uncertain.

It may perhaps be said that there were no means of making a reasonably certain or approximately correct estimate. If that were the case and for that reason, it could not be ascertained who was the lowest bidder, it is not a justification of awarding a contract under the statute as if there were a known lowest bidder.

Truax, J.

(dissenting).—I do not agree with the conclusion of the majority of the court.

At the time the act of 1882 was passed (chapter 410) there-was an ordinance of the common council of this city in force which provided the way in which it should be determined who was the lowest bidder. This ordinance the legislature continued in full force and effect by section 84 of chapter 410. When the legislature enacted this law they in effect made the ordinance of the common council which was then in force, a part of the Law of 1882, and pointed out the way in which it should be determined who was the lowest bidder.

The method of determining who was the lowest bidder that was used in this case is the method that has been in use in this city for a great many years, and particularly since the charter of 1873 was passed, in which charter there was a provision similar to section 64 of chapter 410 of the Laws of 1882.

The legislature knew the interpretation that - was put upon the charter of 1873, and it is entirely fair to infer that if the construction put upon the act of 1873 by the public authorities of the city did not carry out the intent of the legislature, other language would have been adopted in the act of 1882, which would have carried out that intent.

The re-enactment of the provision of the charter of 1873, above referred to, by the legislature in 1882, should be deemed to be an adoption by the legislature of the construction put upon the act of 1873 by the city authorities. People ex rel. Outwater v. Green, 56 N. Y., 475.

This construction has almost the force of a judicial exposition. People ex rel. Williams v. Dayton, 55 N. Y., 367.

In this connection it is to be noticed that section 64 of chapter 410 requires the counsel to the corporation to settle the term of the contract as an act of preliminary specification to the bid or proposal,” and that the contract sued on here contained the very surveyor’s estimate of the nature and extent of the work to be done which the majority of this court thinks did not furnish a basis on which to let the contract, and was settled by the law officer of the city.

That this method of determining who is the lowest bidder is not illegal is supported, I think, by the case of, In the Matter of the Petition of Merriam (84 N.Y., 601.)

The principal contention urged against the validity of the assessment which was the subject of review in that case was, that the work was not let to the lowest bidder as required the charter and the ordinances of the common council of the city of New York, because the items of rock excavation were not submitted to competition, but a price was arbitrarily fixed therefor by the commissioner of public works.

Judge Miller in writing the opinion of the court in this case, called attention to the fact that the ordinance, chapter 8, article 2, requires that “ supplies and work shall be furnished by contract; that no contract shall be made until proposals are advertised for; and, that they shall state the quantity and quality of the supplies or the nature and extent as near as possible of the work required.” Sections 15, 16, 17, title 2.

The city claimed that it would be exceedingly difficult to ascertain beforehand the quantity of rock excavation, which constituted the largest item in the contract, so as to make an estimate sufficiently correct to carry out the purpose of letting the contract to the lowest bidder.

These suggestions, continues Judge Miller, ‘ ‘ are not without force, and while there is strong ground for the claim that the price fixed for one or more items is fair and reasonable, and'there is no evidence of fraud or extravagance, and the quantity could not be ascertained without a considerable expenditure of money, and that this could be done in some instances consistently with the interests of the public in view, and with the statute and ordinances we are, upon the whole, of the opinion that to carry out the intention of the law to award contracts to the lowest bidder, it is requisite that the quantity of rock excavation as near as possible should be stated in the proposals, and that fixing the price for the same was in disregard of the law, and a violation of the statute and the ordinance of the city which is cited.”

And again he says: that “the intention of the lawmakers was to enforce a submission of every important item for competition, naming the quantity so far as it could be reasonably ascertained.”

It seems to me that the way provided by the regulations and ordinances of the common council is the only reasonable way in which the city could submit proposals for work to be done, and that the city is protected by the power which is given to the head of the departments to reject all bids and re-advertise the work anew.

The only other way in which work could be let would be by submitting the whole work in a lump to competition, the effect of which would be to restrict competition.


source: Caselaw Access Project

author: Sedgwick, J.

license: Public Domain

text:
    Genevieve Baker, Resp’t, v. Manhattan Railway Company, App’lt.

      (New York Superior Court, General Term,

      Filed May S, 1887.)

    Negligence—Damages—For what obtained—Judges charge.
    The plaintiff brought this action for the loss of part of her little finger. The judge charged “ that the damages to which the plaintiff is entitled, in case "she is entitled to recover at all, include her physical pain and mental suffering, and such general inability to attend to any business as a music teacher which the evidence with reasonable certainty shows she has sustained.” Held, there was no error.
    Appeal by defendant from judgment entered upon verdict for plaintiff and from order denying motion for new trial made upon the minutes.
    The action was brought. to recover damages alleged to have been sustained by plaintiff by reason of the negligence of the employees of the defendant in causing or allowing a door of one of defendant’s cars to close upon her little finger while she was a passenger on defendant’s railway.

      Edward S. Sapallo and Howard Townsend, for app’lt; Hunt & McVicar, With James M. Hunt, for resp’t.
   Sedgwick, J.

The action was for damages, from negligence of the defendant that caused a personal injury of plaintiff.

The learned counsel for the appellant argues that as matter of law the verdict should have been directed for defendant. The ground of this, as claimed is, that as the plaintiff was an interested witness, the version of the transaction as testified to by four witnesses for the defendant, that contradicted her testimony, should have been taken to be conclusive upon the jury. In my opinion, the jury were at liberty to disregard things sworn to by the defendant’s witnesses to such an extent, that they could find the plaintiff’s testimony to be credible, upon the material issues.

On the issue of the damages the judge charged “that the damages to which the plaintiff is entitled, in case she is entitled to recover at all, include her physical pain and mental suffering, and such general inability to attend to any business, as a music teacher, which, the evidence, with with reasonable certainty shows she has sustained; that there is no evidence of any specific loss of business or loss of time in her business, and nothing can be allowed specifically for any of these items.”

The counsel for defendant excepted to the charge that there could be a recovery for the inability referred to and asked the court to charge to the contrary, which was refused.

In my opinion, the charge with its limitations was correct. Although the plaintiff gave no proof of a specific loss of business, she gave proof, as to the physical consequence of the destruction of the end of her finger, in impairing the use of her hand in playing upon the piano. For this impairment the jury might assess a compensation which would not necessarily include a compensation for a loss of business and the plaintiff could not in the nature of things give testimony as to what would be compensation. It was therefore to be fixed as in many other like cases it has to be, by the jury itself. The same is to be said of the other consequences of the injury, that according to the plaintiff’s testimony, prevented her from attending to her usual business of a music teacher. Apart from the loss that might be suffered in her not getting money from her pupils, there was something to be compensated, in her not being able to employ her time and her faculties in a way that she had lawfully chosen. In this case, the jury could not have gone to a fanciful conjecture on this point, for the judge was most careful to instruct it, that the plaintiff could recover damages, only that were shown with certainty.

The amount of the verdict was not excessive.

Judgment and order appealed from affirmed, with costs.

0’Gorman, J, concurs.


author: O’Gorman, J.

text:
    Michael Morrassy, Resp’t, v. Mayor. Aldermen and Commonalty of the City of New York, et al., App’lt.

      (New York Superior Court, General Term.,

      Filed May 2, 1887.)

    Negligence—Municipal corporations—Streets—Stepping-stones.
    Plaintiff, while walking along Fourth street, in New York city, fell over a large block of stone which had .been used as a stepping-stone, and for a long time allowed to be on the sidewalk, and the plaintiff was badly hurt thereby. Held, whether the allowing such an obstruction to remain on the sidewalk was in itself negligence should be left to the jury under all circumstances of each case as a question of fact. Following Dubois v. City of Kingston, 102 N. Y., 221; 1 N. Y. State Reporter, 350.

      Appeal by defendants from judgment in favor of the plaintiff for $750, entered on verdict.

      Peter Mitchell, for resp’t; David J. Dean, for app’lts.
   O’Gorman, J.

The facts are that plaintiff, while walking along Fourth street in this city, fell over a large block stone which had been used as a stepping-stone and for a long time allowed to be on the sidewalk, and the plaintiff was badly hurt thereby.

The learned trial judge submitted to the jury the question at issue whether the negligence of the defendants contributed to the disaster, but directed the jury, as a matter of law, that the defendant corporation was negligent in allowing the block to remain on the sidewalk.

To this direction, the defendant corporation excepted, and the only question to be considered on this appeal is whether that exception was well taken.

In the case of Dubois v. City of Kingston (102 N. Y., 221, 1 N. Y., State Rep., 350), the plaintiff was injured from a similar cause, and had a verdict and judgment in his favor, from which the defendant appealed.

The court of appeals held that the court erred on the trial in denying the defendant’s motion to dismiss the complaint, and that there was no evidence which justified the conclusion that the stepping-stone, there in question, was dangerous to travelers or that the defendant, the city of Kingston, was liable for negligence in allowing it to remain on the sidewalk.

This decision was rendered since the trial of the case at bar, and it may justly be inferred from it that in the opinion of the court the question whether the allowing such an obstruction to remain on the sidewalk was in itself negligence, should be left to the jury -under all the circumstances of each case, as a question of fact.

The refusal, in the case at bar, to send the question to the jury was, therefore, error.

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

Sedgwick, C. J., and Freedman, J., concur.


author: Per Curiam.

text:
    Augustus F. Holly et al., as Executors, etc., Resp’t, v. Charles Schlesinger, App’lt.

      (New York Superior Court, General Term,

      Filed May 2, 1887.)

    Agent—Power op attorney—Counterclaim.
    The plaintiffs as executors gave one Masterton a power of attorney to collect all debts, etc., due to their testator’s estate in the island of Santa Cruz. Afterwards they assigned for a valuable consideration all the property of their testator that was to be found in said island to the firm of which Masterton was a partner. Their power of attorney was not formally revoked, and by means of it, assuming to represent the executors, he afterwards collected and converted to his own use certain of the property assigned to said firm. In this action brought by the plaintiffs to recover on one of the notes given as consideration of said assignment the defendant set up as a counterclaim the amount converted. Held, that all the right the executors had in that property had been parted with, and that if he, by using that power of attorney, got it into his possession, the moment it was in his possession it was in his possession not as an agent for the executors but as a member of the partnership of Masterton & Co., and vested in him only as a member of said firm, that the counterclaim was properly disallowed.
    Appeal from a judgment entered upon a verdict by direction of the court.
    The action was brought by the plaintiffs as executors against the defendant as endorser of a promissory note made by the firm of Masterton & Co., of which firm the defendant was a partner. The note is dated July 19, 1881, payable in four years after date for the sum of $5,000.
    Ón the 19th of July, 1881, the plaintiffs, with Francis J. Freel, as executors of Edward Roache, deceased, sold certain property to Masterton & Co., situated in the Island of Santa Cruz, D. W. I., consisting in part of certain mortgage bonds on sugar estates in that island, for $28,000; eight thousand dollars of which was in cash, and four promissory notes of said firm of Masterton & Co., for five thousand dollars each, and payable respectively in one, two, three and four years, from the 19th day of July, 1881, to the order of and endorsed by the defendant. The eight thousand dollars cash and the three notes of five thousand each were paid by the defendant. The sale of the plaintiffs to Masterton & Co., among other property, embraced two mortgage bonds—one of J. Queale, amounting to $10,850, and the other of J. W. Willard, for $937.50. At the time of the sale by the plaintiffs to Masterton & Co. the Queale mortgage bond did not exist. It appears that on the 23d of April, 1881, nearly three months before the purchase by the defendant, the Queale mortgage bond had been foreclosed and $1,000 paid to Masterton in cash, and a new mortgage bond given by F. Raphael for the balance, amounting to $9,167.14. This latter bond was in favor of the executors of Edward Roache, deceased. Masterton received the $1,000 on the Queale bond and procured the Raphael bond under and by virtue of a power of attorney executed to him by the plaintiffs as executors, bearing, date ' "the 15th of July, 1879. And under and by virtue of the .same power of attorney, he afterwards collected the whole sum due upon that bond. Under the same power of attorney Masterton received the balance due on the mortgage bond of J. W. Willard, amounting to $625. By the law of Denmark, which obtains in Santa Cruz, the sale by the plaintiffs of the property in that island to the firm of Masterton & Co. did not revoke the power of attorney executed, by the plaintiffs to Masterton, and that power of attorney had the same effect as if the plaintiffs had previously made an absolute sale of the property to Masterton.

      C. Bainbridge Smith, for app’lt; Edsall & Fowler, for resp’t.
   Per Curiam.

The matters proved by the defendant did not establish a failure of consideration constituting a defense to the note sued upon. The bill of sale transferred an effectual title to the property for which the notes were given. The title has never been restored to the plaintiffs. It related, not to specific articles, but to an unliquidated interest in .the assets of a dissolved firm. Nor did the proof given "by the defendant establish a counter-claim.

The verdict was properly directed, and the judgment should be affirmed, with costs, upon the opinion of. the learned judge below.

The following is the opinion of the trial judge:

O’Gorman, J.—It seems to me that there is no issue of fact in this case which it is the duty of the court to submit to the jury; and under these circumstances it is the duty of the court to decide such questions of law as arise, and instruct the jury whether they should find for the plaintiff or defendant.

Inasmuch as this case may go for review to some other tribunal, it seems convenient that I should now state as briefly as I can the reasons which induce me to take the course which I am about to take. Before 1879 a partnership existed both in the city of New York and in the Island of Santa Cruz, consisting of various members, using in the city of New York the name of “ Eoache Bros. & Co.,” and using in Santa Cruz the name of “Eoache Bros.”

In each case the partnership was the same, and consisted of the same persons. Among these partners was Edward Eoache, and also Edward Masterton. In 1879 Edward Eoache died. He died in the Island of Santa Cruz, in which Island the partner named Masterton had taken up his residence, and was an active representative of the partnership there. On the death of Edward Eoache a power of attorney was executed by his administrators to Master-ton to look after the property of the deceased partner in Santa Cruz. After some years had elapsed Mr. Masterton ' came to New York and established a partnership in connection with the defendant in this case, and received from the representatives of the deceased partner an assignment or bill of sale to the new partnership, which was called “Masterton & Co.,” of all the right, title and interest of the deceased Edward Eoache, which had descended to' them as his representatives in the partnership property which was to be found in the Island of Santa Cruz_, and in all claims by, or indebtedness to, the deceased which had not been collected up to the time of the execution of the assignment. Thereupon this new partnership went izito existence, Mr. Masterton again going to Santa Cruz, and there representing the partnership of Masterton & Co., of which the defendant Mr. Schlesinger was a partner. In consideration of this' assignment, which was not a bill of sale of specified securities or specific property belonging, or claimed to belong, to the deceased, but only of the right, title and iziterest that the deceased possessed in this property of partnership izi Sazita Cruz, a certaizi amount, $28,000, was paid. On the execution of that assignment by the executors of the deceased Edward Eoache, all claims or right which these executors would have in any of the assigned property wholly ceased. They had no right to azi accouzrt from Mr. Masterton as to what he collected, nor was he in any way liable to them. Whatever he collected belonged not to him, nor to thezn, but to the ziew firm of Masterton & Co., in whose possession, by meazis of that bill of sale, all the light to the property of the deceased in Sazita Cruz or his executoi’S was vested.

It is claimed, azid it is in evidence, that during the existence of that partnership, this Masterton collected some property which belonged to the partnership under the bill of sale, and neither paid it over to the partnership, as he was bound to do nor paid it over to the executors, who had in law, no claim whatever to receive it. Under the bill of sale fortified by certain documents which were prepared for publicity in Santa Cruz, the new firm of Masterton & Co., Izad all real and apparent light, and all real and apparent means to collect all the moneys which, under the bill of sale, they were entitled to collect.' But the old power of attorney, made by the executors in 1879, was never formally revoked, it was still in the possession of Masterton, and it is claimed, that, in the collection of these moneys, which he should have paid over to the firm of Masterton & Co., he used this power of attorney, assuming to represent the executors of the deceased, instead of, as he was bound to do, making the claim on behalf of the partnership of Masterton & Co. Because he did that, although there is no evidence that any of these moneys were ever paid into the hands of the executors, (where they ought not to be paid,) because he has not paid it over into the hands of Masterton & Co., or into the hands of the defendant in this case, one of the partners, a claim is made of a set-off against the plaintiff’s claim in this action, to the amount of all the moneys which Mr. Masterton so collected; and that claim is made on the principle that what a man does by another, being his agent, he is held to do by himself.

I hold that that principle does not apply to the action of Masterton in this case. The executors did not do anything through him as their agent. They had no right to collect that money through him, or through the use of that power of attorney. They had no right to receive it if collected. All the right they had in that property or money, had been parted with; and if he, by using that power of attorney, got it into his possession, the moment it was in his possession, it was in his possession not as an agent for the executors, but as a member of the partnership of Masterton & Co., and vested in him only as a member of that firm; and the claim of the defendant is a question between him and his partner Masterton only, for not paying over the money which he (Masterton) got by the use of this power of attorney, but which when once received by him became the property of the firm.

I therefore hold that the requests to charge made to me by the learned counsel for the defendant, although in themselves in many respects undoubtedly law, are not applicable to the contention before us, and I decline so to charge; and I direct the jury that, as a matter of law, they find a verdict for the plaintiff, for $5,426.58.


author:
Per Curiam.
      Freedman, J.

text:
    In the Matter of John E. Parsons to require James J. Slelvin, as Register, etc., to tax certain fees, etc.

      (New York Superior Court,

      Filed May 23, 1887.)

    1. Register—Must tax fees upon written demand—Code Civ. Pro., § 3387.
    It is provided by Code of Civil Procedure, section 3387, that each Register, who claims any fees by virtue of his office, must, upon the written demand of the person liable to pay the same, cause them to be taxed within the county, upon notice to the person making the demand, by a justice of the supreme court, a judge of a superior city court, or the county judge.

      2. Same—Laws 1884, chap 581—Fees of, under.
    By Laws of 1884. chapter 531, the register of the city and county of New York shall collect fees as follows For searching and certifying the title to and incumbrances upon real property, for each year for which the search is made, for each name and each kind of conveyance or lien, five cents Held, that the statute did not authorize a multiplication of the fee expressly given, by the number of lots or parcels conveyed by the same requisition.
    Appeal by register from order taxing his fees as register, etc.

      H, B. Classon, for resp’t; Wm. L. Turner, for app’t.
   Per Curiam.

Order appealed from affirmed, with costs, upon the opinion of Judge Freedman at special term.

Freedman, J.

—This is a proceeding to tax the fees of the register of the city and county of New York upon his return to a requisition of search in the records of his office put in by Mr. Parsons, as attorney for the estate of Walter Bowne, deceased. The right to have the register’s fees taxed by a justice of the supreme court or a judge of a superior city court is given by section 3287 of the Code of Civil Procedure.

The requisition required a search to be made for mortgages, conveyances and all other instruments in writing and incumbrances upon or affecting the title of sixteen distinct parcels of property situated in different portions of the city, and the search was to be made against certain names and for certain periods specified.

The register’s contention is that the fees amount to $917.05, and this result is arrived at by the following computation, viz.:

Search against 1 name for 91 years............ 91 years.

“ “ 1 name for 1 year.............. 1 year.

“ “ 29 names for 10 years each....... 290 years.

Total number of years.................. 382

382 years for mortgages at 5 cents each.......... $19 10

382 “ for conveyances at 5 cents each......... 19 10

382 for all other instruments at 5 cents each. 19 10

$57 30

Sixteen distinct parcels at $57.30 each............ $916 80

For certificate.................................. 25

Total.................................... $917 05

The duty to make the search was imposed upon the register of the city and county of New York by the provisions of chapter 531 of the Laws of 1884, and that statute is now the only law under which the register is entitled to collect any fees. By that statute the successor of the register then in office was made a salaried officer, and his compensation was fixed at and after the rate of $12,000 per year in lieu of fees. It was also enacted that all fees which may be collected by the register under the new system shall belong to and be for the benefit of the city and county of New York, and that they shall be collected by the register, and by him accounted for and paid over monthly into the treasury of the said city and county. The statute then prescribes certain fees to be thus collected for certain services to be performed by the register. The only provisions material to the present inquiry are contained in the fourth section, as follows :

“ For searching and certifying the title to and encumbrances upon real property for each year, for which the search is made, for each name and for each kind of conveyance or lien, five cents.

“ Every certificate other than to a paper, for the copying of which he is entitled to a fee, twenty-five cents.”

These provisions are re-enactments of provisions contained in section 3304 of the Code of Civil Procedure, and the last-named provisions were re-enactments of similar provisions contained in 2 Revised Statutes, part 3, chapter 10, title 3. One of the said provisions of the Revised Statutes which applied to the register of the city and county of New York (section 30), was as follows:

“To a county clerk, for searching the records in his office, or the records of mortgages deposited in his office by loan officers and commissioners of loans or the dockets of judgments, for each year, five cents.”

This provision was construed by the court of appeals and • held to contemplate compensation for four distinct lines of searches, viz.:

1. For mortgages.

2. For conveyances.

3. For mortgages deposited by loan officers and commisers of loans; and

4. For judgments. Curtis v. McNair, 68 N. Y., 198.

If, under the section of the Revised Statutes thus constThed, the register was entitled to charge five cents for mortgages, five cents for deeds, etc., he is under the law as it now stands, clearly entitled to charge five cents for deeds, five cents for mortgages, and five cents for all other instruments on record which are not embraced under the general head of mortgages or conveyances. The law expressly says: “each kind of conveyance or lien.”

But I cannot find any authority in the statute for a multiplication of the fee expressly given, by the number of lots or parcels covered by the same requisition. The statute permits multiplication for each year, for each name, and each kind of conveyance or lien, seached for. It is silent as to number of lots or parcels which may be affected by the same name or the same conveyance or lien. Consequently, under the operation of the familiar rule, expressio unius est exclusio alterius,” no authority can be implied for a multiplication by the number of lots or parcels, no matter how distinct, embraced by the same requisition. This seems to be so free from doubt as to justify a refusal to pursue the investigation any farther.

But the learned counsel to the corporation who appeared to protect the interests of the city and county, because the register has no personal interest in this matter, showed that for a long time past it has been the established custom of the register’s office to charge a separate fee for each distinct parcel of land covered by the same requisition; that a disturbance of that custom by a different interpretation or construction of the statute would, in a case like the present, yield to the public treasury a wholly inadequate compensation for the services to be rendered; and that, even as it is, the returns of the register’s office for the months of January and February, 1887, indicate that the receipts of the register’s office for the year will probably be less than the entire expense incurred by the city and county of New York for maintaining the said office.

I have given to this contention a good deal of thought, but cannot find that it would justify a different interpretation or construction of the statute than above indicated. There are, it is true, various rules of construction and of interpretation, which, briefly summed up, are to the effect that the rights of the government are not to be taken away by ambiguous words, but only by clear and unequivocal language. But these rights, properly understood, do not include the right of an officer, either in his own behalf or in behalf of a municipal corporation, to collect fees for certain services. Every such fee, and the amount thereof, depends upon an express enactment. True, it is not necessary that the legislature should directly authorize a fee or the amount thereof. It may empower a municipal corporation or an officer in general terms to collect certain fees and to fix the amount thereof. But in every such case the general grant of power must be broad enough for the purpose. Beyond that the right to collect a certain amount as a fee cannot, in the nature of things, rest upon a mere implication or a strained construction of a statute. In the case at bar, there is no such general grant of power. The legislature undertook to regulate the subject directly, and in doing so no right was conferred to multiply the fee by the number of distinct parcels covered by the same requisition. Moreover, the Code of Civil Procedure not only gives to a person feeling aggrieved the right to apply for a taxation of every fee charged by the register, but it further provides that each public officer, upon whom a duty is expressly imposed by law, must execute the same without fee or reward, except where a fee or other compensation therefor is expressly allowed by law, and that an officer or person to whom a fee or other compensation is allowed bylaw, for any service, shall not charge or receive a greater fee or reward for that service than is so allowed. Section 3280.

A careful examination of chapter 531 of the Laws of 1884, as a whole, also fails to disclose any reason leading to a different result. There is nothing in the statute, as a whole, or the intent or policy thereof, which sanctions any custom theretofore existing in the register’s office, or which permits me to disregard the ordinary rules of statutory and grammatical construction. Probably the legislature was of the opinion that cases like the present, or cases involving a considerable number of distinct parcels, were not likely to occur in great numbers, and that, therefore, it was not worth while to make specific provisions for them. If, in fact, such cases are of frequent occurrence, and the interpretation and construction given by me to the statute should lead to abuses, the attention of the legislature should be directed to these matters. At all events, the remedy, if any should be had, must come through legislation.

For the reasons stated, the register, upon the requisition in question, is entitled to $57.30 for the searches made, and to twenty-five cents for the certificate annexed, making a total of $57.55, and his fees áre hereby taxed accordingly.


author: Dugro, J.

text:
    Gardner Q. Colton, Pl’ff, v. Henry F. Deane, Def’t.

      (New York Superior Court, Special Term,

      Filed February 12, 1887.)

    1. Trade mark—Name—Right to use.
    The use by an individual of a name such as would be appropriate to a corporation, is not a violation of any statute of the state and will not deprive the person using it of the right of protection of it as a trade mark.
    2. Same—Injunction—When granted—When one is an assistant.
    The defendant secured the services of a minor employee of Colton’s (a dentist, having a large business in extracting teeth), advertised his own business and place of business under the heading conspicuously displayed, “ Colton’s late assistant,” for the purpose of inducing the public to believe that Colton’s assistant had left him and was carrying on business at a place other than Colton’s, viz.: defendant’s place. Held, a proper case for the interference of the court by injunction restraining defendant; that the employee was not an assistant. Van Wyck v. Horowitz, 39 Hun, 237, distinguished.

      Chauncey Shaffer and Jacob Fromme, for pl’ff; Blumenstiel & Hirsch, for def’t.
   Dugro, J.

Colton, the plaintiff, more than twenty-three years ago, was the originator of the process or method of extracting teeth with the aid of nitrous oxide or laughing gas. By this method the operation could be safely performed without pain to the patient. To make his process a financial successs, the plaintiff in 1863, associated himself with three others in the city, and under the name “ Colton Dental Association ” began a business of extracting teeth with the aid of this gas.

This method did not, however, appear to be popular at first, and after continuing business a few months, and finding it unprofitable, the associates of the plaintiff withdrew from it, leaving the business and name “ Colton Dental Association ” to plaintiff. This name at that time, was of slight, if any, value. Thereafter, and since 1863, through the perseverance and industry of the plaintiff, and at great expense to him, the name, together with that of the plaintiff, “ Colton,” became identified with the method of extracting teeth with the aid of nitrous oxide gas, and that method became very popular, the prejudices against it being removed through public exhibitions given by plaintiff at which explanations and demonstrations were made. The name “ Colton Dental Association ” and “ Colton ” obtained their value only through the efforts of the plaintiff; and as their sole possessor he has a right to consider them his trademark.

The main contention of defendant seems to be that the plaintiff is precluded from obtaining in a court of equity any relief against the acts of the defendant herein, because the plaintiff in the conduct of his business and as the title of his establishment made use of the name “ Colton Dental Association,” while in point of fact for many years there was no body corporate or incorporate forming said association.

It was not shown that by doing business under this name the plaintiff was in any way defrauding or deceiving the public. It does not appear that there was any justifiable public belief that there was an association of dentists doing business under that name, and that therefore superior ability and treatment could be expected. I cannot therefore see how the plaintiff at any time, by the use of his name, made any materially false statement in connection with the property he seeks to protect. Even if it be conceded that the name contains a false statement, it is a false statement of an immaterial matter; for it seems to me that all credit, faith and reliance was placed in Colton himself. It does not appear that any person was believed by the public to be associated with Colton in his business.

The authorities upon which the defendant relies are not applicable to this case, for in all of them there was a materially false statement in the names, etc., used, and an evident intent on the part of the user of the name to deceive and defraud the public. In this case, however, the name ‘1 Col-ton Dental Association ” derives all its value from the name “ Colton,” and not from the words “dental association.” I am satisfied that the use by an individual of a name, such as would be appropriate to a corporation, is not a violation of any statute of the state and will not deprive the person using it of the right of protection of it as a trade-mark. Lauferty v. Wheeler, 11 Abb. N. C.

Now, as to the infringement: It appears that the plaintiff Rad in Ris employ about February, 1886, and for six years prior thereto, a young lady, Carrie Wolfsbruck, whose duties in her employment were to hold and insert in the mouths of patients a tube, through which the nitrous oxide gas was administered. When a patient has inhaled sufficient gas, the tube was removed by her, and the ■operator, a dentist, extracted the teeth. It was the operator’s duty to determine when sufficient gas had been administered.

About March, 1886, the defendant Deane, a dentist, employed Miss Wolfsbruck, who had been a short time previously discharged by the plaintiff, and immediately thereafter he began to insert advertisements in many newspapers of this and adjoining cities, such as the following: “ Colton’s late assistant, 137 East Forty-fifth street. Teeth extracted without pain with pure laughing gas. No charge for extraction when artificial teeth are to be inserted.” He also placed signs in several places where the public would be apt to see them, reading: “ Colton’s late assistant. Colton’s Dental Association,” etc. In some of these advertisements and circulars the name “ Colton,” and in almost all the others the words “ Colton’s late •assistant ” are printed in much larger and more prominent type than that used for the balance of the notice.

To prevent the continued use of these advertisements, circulars and signs, the plaintiff applies for this injunction.

It seems to me that the duties performed at the Colton Dental Establishment by Miss Wolfsbruck were not such as would entitle her to claim that she was “Colton’s late •assistant,” for it was not her duty to assist in extracting teeth, but only in the administration of gas under instructions from the operator. This, as Colton testified, any child could do after an experience of a couple of weeks.

Colton’s business consisted in extracting teeth with the aid of gas. The extraction of teeth was the main work. This required a dentist, and for this work he had several dentists in his employ. The work of Miss Wolfsbruck was such as required very slight experience, for it seems the menial servant sometimes did it. Colton’s business and establishment was well known throughout the community as a place where teeth would be painlessly extracted. And by holding herself forth to the public as “Colton’s late assistant” Miss Wolfsbruck was impliedly claiming that she had assisted at said establishment in the extraction of teeth, while such was not in fact her duty in said place.

The case of Van Wyck v. Horowitz (39 Hun, 237) has been cited by defendant, but this case differs from that before me, for Horowitz’s read “Horowitz late with Van Wyck,” and this was found to be a true statement. I find Miss Wolfsbruck’s statement, “Colton’s late assistant,” to be an untruth and a conclusion of her’s not warranted by the facts. Horowitz was unqualifiedly “late with Van Wyck.” Miss Wolfsbruck was not unqualifiedly, if at all, “ Colton’s late assistant.” Dr. Slocum, it appears, was generally known as “ Colton’s assistant.” But the defendant, Deane, was not only deceiving and misleading the public into the belief that Miss Wolfsbruck was Colton’s late assistant, but it, as it appears to me by some of his advertisements, circulars and signs, he was also deceiving and defrauding the public into the belief that he was “ Colton’s late assistant; ” in none of his circulars does the name of Miss Wolfsbruck appear. The circulars read, “ Colton’s late assistant. 137 East Forty-fifth street, up-town headquarters for gas, the only safe place to have teeth extracted, 137 East Forty-fifth street, &c.” His advertisements were similarly indefinite as to identity of Colton’s late assistant.

The public is requested to call at 137 East Forty-fifth street to find Colton’s late assistant. Arriving at this place, the only name or sign on the house is that of Henry F. Deane, dentist. How can the probable and natural inference of the public be otherwise than that Deane is “ Colton’s late assistant?” The scheme was well planned and cunningly executed, but so much is the deception greater. A glance at the circulars and advertisements shows conclusively the intent to defraud Colton and infringe upon his rights, for in almost all of them the name “Colton” is unduly prominent.

No satisfactory explanation has been given as to why the defendant’s name does not appear in his advertisement or in his circular. But it seems to me that the defendant knowing Colton’s name to have a great reputation and value, and it was desirable to pirate upon the reputation that name had acquired, secured the services of a minor, employee of Colton’s, advertised his own business and place of business under the heading, conspicuously displayed, “Colton’s late assistant,” for the purpose of inducing the public to believe that “Colton’s assistant ” had left him and was carrying on business at a place other than Colton’s, viz.: defendant’s place, 137 East Forty-fifth street.

I am, therefore, of the opinion that what the defendant has done was calculated to deceive, and was from the first intended to deceive the public. It is a case of intentional false representation and not a fair, honest and ordinary business way of stating the fact that a former employee of the plaintiff is now in deféndant’s employ.

The case is a proper one for the interference of this court.

Let there be judgment as prayed for, viz.: that injunction issue, with costs.

Findings to be settled on notice.


author: Truax, J.

text:
    Matter of the Examination of Herman A. Cook,

      (New York Superior Court, Special Term,

      Filed April, 1887.)

    Assignment for benefit of creditors—Filing proof of claim—When' CREDITOR NOT ESTOPPED THEREBY FROM ATTACKING ASSIGNMENT.
    A creditor not having had knowledge, at the time he filed with the assignee his proof of claim, that an assignment was fraudulent and void, is not estopped by the mere fact that he filed a claim from attacking the assignment. Rapalee v. Stewart, 27 N. Y. 310, and Matter of Holbrook, 99 N. Y., 539, distinguished.
   Truax, J.

The judgment debtor claims that he should, not be compelled to answer any questions which tend to show that his assignment is fraudulent and void, because the judgment creditor has filed with the assignee named in the assignment, proof of his claim against the judgment debtor. I think that the objection is untenable.

It nowhere appears that the creditor had knowledge, at the time he filed with the assignee his proof of claim, that the assignment was fraudulent and void, and therefore he is not estopped, by the mere fact that he filed a claim, from attacking the assignment.

The case of Rapalee v. Stewart (27 N. Y., 310), which was cited by the counsel for the judgment debtor, is not an authority for the proposition claimed. In that case the assignment was made with the consent of the creditor, and the court says: “That one cannot predicate a fraud on facts having his assent, upon a full knowledge of them. There can be no fraud when all the parties interested are equally informed of all the facts, and mutually assent to them.” And the court further held: “That the action of the creditor was not only a waiver of any right to attack the assignment for fraud, but was a ratification of it by-coming in and taking action by agreement with other creditors, designed to prevent a sacrifice of the assigned property by a disposal of it in the ordinary way, by the assignees, and by an agreement authorizing further delays and compromises, etc.” “It would be,” says the court, “a fraud upon all the other creditors to this agreement if the plaintiff should be permitted to maintain this action, and by setting aside the assignment gain a preference above them and secure the payment of his entire debt.”

Nor is the case In the Matter of the Assignment of Holbrook (99 N. Y., 539), an authority for the proposition advanced by the judgment debtor. In that case the party moved, under section 21 of the assignment act, for an examination of the assignee, and he sought to obtain on this examination facts to warrant the setting aside of the assignment. This the court held he could not do; that the statute only authorized an examination under that section in aid of the assignment, and not to assail the assignment and avoid it. The objection is overruled.


text:
    Maurice Moore v. Perry P. Williams et al.

      (New York Superior Court, Trial Term,

      Filed April 28, 1887.)

    1. Title—Resulting trusts—1 R. S., Uses and trusts, §§51, 52.
    Ho trust results in favor of a person supplying the consideration for the purchase of land where the title is taken in the name of another, except where the title is so taken without the knowledge or consent of the former. See 1 R. S., Uses and Trusts, sections 51 and 52.
    2. Judgment—When will become a lien on real property, the title TO which is taken in the name op a party other than the one furnishing the consideration.
    o
    Where the surviving member of a copartnership, in his own name, took title to land, for the conveyance of which the consideration was furnished by the copartnership, the representatives of the deceased members having knowledge of the manner in which the title was taken, and having consented that the deed should be made to that partner individually: Held, that a judgment recovered against that partner individually attached as a lien upon the land.
    3. Contract for the conveyance of lands—What is not performance OF.
    A contract having been made between the defendants and the plaintiff, whereby the defendants agreed to convey to the plaintiff the fee simple of premises, subject to a certain mortgage: Held, that the existence of an unsatisfied judgment, which formed a lien upon the land, vitiated the title so that this plaintiff was not bound to receive it.
    4. Same—Deposit and expenses of examination of title may be recovered BY ACTION.

      Held, that the plaintiff might recover in an action against the defendants a deposit made by him, and the expenses incurred in the examination of the title.
    Motion for new trial.

      Davis, Cohen & McWilliam, for pl’ff; Stephen C. Williams and Mr. Zabriskie, for deft’s.
   O’Gorman, J.

In December, 1884, the defendants executed an agreement in writing for the sale to the plaintiff of certain real property in Brooklyn, which was then subject to a mortgage for $22,500.

In that agreement they bound themselves to execute and deliver to the plaintiff, on receipt of certain payments to be made by him, a proper deed, “bargain and sale, for the conveying and assuring to him the fee simple of the premises subject to the encumbrances aforesaid ” (the mortgage above referred to). .

The plaintiff, on examination of the title, discovered that a judgment for $4,033 had been duly entered at the suit of Demás Barnes against William H. Guión, docketed in Broeklyn in February, 1884, while said Guión was owner in fee of the property described in the contract, by an absolute deed to him duly recorded.

Barnes, the judgment creditor, on being addressed*on the subject, refused to satisfy the judgment or release the property of any lien because of the judgment.

The plaintiff has brought this action for the purpose of recovering the money ($250) paid to him as part of the consideration for the sale and for expenses of examining title, on the ground that the defendants failed to give him such title as he was bound under their agreement to accept. Such an action is proper on the authority of Bruner v. Meigs, 64 N. Y., 515.

The defense is . that at the time the judgment was docketed, and while William H. Guión was owner of the property by deed vesting in him the fee simple absolute, and then duly recorded, he was, nevertheless, at that time only trustee for the firm of “ Williams & Guión,” of which he himself was the surviving partner. That the consideration for the deed to him in fee simple was furnished by the firm, and that the property held by him under the deed formed in equity part of the assets of that firm, and that the judgment against him was for the non-payment of a loan made tó him individually by the judgment creditor, and that it never attached as a lien to the property in question.

There is sufficient evidence that the deed in fee simple absolute under which William H. Guión took title, was executed by him in the manner and form desired by William H. Guión; that the representatives of the deceased partners were well aware that such deed had been so made to him, and consented to its being made. The authority of William H. Guión, the only surviving partner, was enough to bind the firm of “Williams & Guión” as to the propriety of the transaction. Tarbell v. West, 86 N. Y., 286. ft also appears that he conveyed the property to the defendants after the docketing of the judgment and for the benefit of that firm. Until the recording of that conveyance on September 25, 1884, there was nothing on record showing any conveyance by Guión or by anyone else to that firm, or any lien on the land in favor of that "firm.

There is in this case, therefore, no element of concealment on the part of Mr. Guión as to the nature of the deed under which he held, and no suspicion of any unfair or questionable dealing in the transaction on his part.

In this form of action the Jmrden is on the plaintiff to prove affirmatively that the agreement to convey to him. has been violated by the defendants, and that the title which they were able to give him was not such as he was bound to receive. Bruner v. Meigs, supra.

There are cases which seem to go further, and to require that in actions of this kind the plaintiff should prove affirmatively that the title offered to him was a “bad title.” Bayliss v. Stimpson, 53 Supr., 225; Methodist Church v. Thompson, 52 id, 328; Page v. McDonnell, 55 N. Y., 299; Lawrence v. Miller, 86 id., 131.

Whether the views entertained in these cases have not been or may not be questioned or limited in their full effect need not now be questioned, assuming them to be of full binding authority. The question in the case at bar is whether or no, on the evidence, the title offered to the plaintiff is a “bad title,” and it would be a bad title if the judgment could have been and could now be put in force against the land. Delavan v. Duncan, 49 N. Y., 487; Cockcroft v. Railroad, 69 id., 206; Ocean Nat. Bank v. Olcott, 46 id., 16; Sturtevant v. Sturtevant, 20, id., 40.

If there were at the time of commencing the action a valid lien or incumbrance on the land to the amount of $4,033, which lien and incumbrance might, at the option of the judgment creditor, be put in force and collected out of the land, then the title was bad.

The agreement called for only one incumbrance, that is the mortgage for $22,500. The existence of any other valid incumbrance so far invalidated the title the defendants were bound to give.

It is contended by the defendant that it could not be so put in force, because William H. Guión was not, during the life of the judgment, owner of the land.

The language of the section of the Code (§ 1251) is that . the judgment shall be a charge for ten years after filing the judgment roll on the real property and chattels real which the judgment creditor has at the time, etc.

That he was the apparent owner; that for all that was disclosed on record, the title in fee simple absolute was vested in him, were beyond question.

That there was nothing on record from which the judgment creditor could have had notice or even cause to suspect that any equitable claim on the part of the firm of “Williams & Guión” existed is beyond question.

That William H. Guión had at the time the judgment was docketed the right and power to sell the property to whom he pleased and for such price as he pleased, and give to his vendee a good title in fee simple absolute, is beyond question.

The defendants’ contention is that notwithstanding all that, there existed all the time that Guión held the property, a secret equitable title in the firm of “Williams & Guión,” which rendered the judgment as a lien on the land ineffectual.

The plaintiff depends on section 51, Statute of Uses and Trusts (1 R. S.), which forbids the creation of a trust in favor of a person supplying the consideration for the purchase of land when the title is in another.

By section 52 this prohibition is made not to apply to cases where the title is taken in favor of another than the person supplying the consideration without the knowledge or consent of the latter.

The facts in the case at bar are not such as bring it within the influence of the latter section, and it will be found, I think, that the cases cited by the learned counsel for the defense have in them some element of fraud or concealment from which it appeared directly in evidence or was properly inferred, that the person paying the consideration was ignorant of the fact that the title to the land was taken in the name of another, and for that reason an equitable hen on or an equitable title to the land existed by implication in the person paying the consideration. This feature of secrecy and fraud against which protection is afforded in section 52 above mentioned, existed and "was prominent and controlling in Lounsbury v. Purdy (11 Barb., 493); Siemon v. Schurck (29 N. Y., 598, 612, 615).

In Delmonico v. Guillaume (2 Sand. Ch., 368) the contention was wholly between partners, and no question as to any outside lienor was raised.

In Tarbell v. West, supra, the contention was as to the rights of a mortgagee of property known to him to be partnership property. It was there held that where the legal title to partnership lands is vested in one partner, his bona fide grantee or mortgagee takes his title free from equities of the other partners, or of copartnership creditors. But if he have notice that the land is partnership assets, he takes subject to the equities (id., 287).

Staats v. Bristow (73 N. Y., 264) is not in point. There a purchaser at a sheriff’s sale of the property of the judgment debtor was held to have bought not certain special property belonging to the firm of which the judgment debtor was a partner, but only his interest in the partnership surplus.

Van Brunt v. Applegate (44 N. Y., 547) concerned only the effect of a conveyance by a partner of his undivided half in real estate belonging to the firm, and throws no light on the question in contention in the case at bar.

The other cases cited by the learned counsel for the defendant do not seem to be in point or controlling.

It is I think clear on the authorities that the defendant’s .agreement entitled the plaintiff to a deed that would vest in him a title to the premises, free of all incumbrance but the mortgage, and could only be performed by giving a deed conveying such title. (Delavan v. Duncan, supra). Sucha title has not been offered to the plaintiff by the defendants, and because of their failure and default plaintiff is entitled to damages against them, which damages are only the return of the deposit paid by plaintiff on account, and his expenses in examining the title.

I see no reason to doubt that the judgment became, under .section 1251 of the Code, a valid charge and hen on the land when docketed, and is still a hen, and can be put in force by the judgment creditor, and will continue to be a lien for ten years thereafter unless satisfied or released.

The defendant’s motion for a new trial is denied, with ten dollars costs.


text:
    Charles G. Bloete and Charles Buckner, Pl’ffs, v. Martin Simon, Def’t.

      (New York Superior Court, Special Term,

      Filed May 12, 1887.)

    1. Cigarmakers’ Unions—Right op individual members to sue in' their own names—Code Civ. Pro., §§ 446 and 448.
    Individual members of an unincorporated association may sue in their own name, on behalf of themselves and associates, under sections 446 and 448 of Code Civil Procedure.
    '2. Same—Trade mark—Action will lie to restrain imitation and use.
    _ Where cigarmakers’ unions own a trade mark or label, as designating the cigars made by them and their associates, an action will lie to restrain the imitation and use of such trade mark by a person, with fraudulent intent to induce purchasers to believe that the cigars sold by him had been made by the members of such unions.
    Demurrer to complaint.

      Benjamin F. Einstein, for demurrer; Bressin & Steele, opposed; Antonio Knauth, of counsel.
   O’Gorman, J.

This is a demurrer to the plaintiffs’ complaint on the grounds: 1. That there is a defect of parties in that other persons, associates of plaintiffs, should have been joined with them as plaintiffs. 2. That plaintiffs have not legal capacity to sue on behalf of their associates. 3. That the complaint does not state a sufficient cause of action.

The material facts, as set forth by plaintiffs in their complaint and admitted by the demurrer,- are briefly these: Plaintiffs are members of cigar makers’ unions which acknowledge the jurisdiction of “ The Cigar Makers’ International Union of America.” The number of members of such unions in America exceeds 26,000. The unions are voluntary unincorporated associations of practical cigar makers. They have all a common and general interest in the question which is the subject of this action, and plaintiffs bring suit on behalf of themselves and all other members of said unions who shall in due time come in this action and contribute to its expenses. The purpose of these cigar makers’ unions is to promote the mental, moral and physical welfare of members by assisting them to obtain labor at remunerative prices, affording them pecuniary aid in sickness, and generally to maintain a high standard of workmanship and fair wages of cigar makers. The Cigar Makers’ International Union of America is composed wholly of local cigar makers’ unions, and its members are delegates elected by said unions, and its purposes are the same as those of the cigar makers’ unions.

In 1880, these cigar makers’ unions, by their delegates in convention assembled, devised and adopted a trade mark or label, to which they gave the name of “Union Label.” This was done for the purpose of designating the manufacture of members of said cigar makers’ unions, and intended to be a guaranty that the cigars contained in the boxes to which these labels were pasted were manufactured by members of the cigar makers’ unions; that fair wages and good workmanship had been secured, and that the cigars were not made in tenement houses or prisons; and for these reasons cigars with such labels .attached commanded a higher price in the market than cigars of similar appearance without the label, and the use of the label is the source of great profit to plaintiffs and others in whose behalf they sue. Cigar makers and the public have, ever since the adoption of the trade mark, acquiesced in the exclusive right to the use of it by the members of the cigar makers’ union maintained by them.

Defendant Simon, with intent to defraud plaintiffs and impose on the public, has sold, and continues to sell, cigars not made by the members of the said cigar makers’ union, and packed in boxes bearing a label falsely purporting to be issued by the cigar makers’ union, and imitating the said label so closely as to be calculated to deceive the public and lead them to believe that the cigars so sold by him were manufactured by cigar makers’ unions, and the plaintiffs receive irreparable damage thereby.

The plaintiffs therefore pray for an -injunction against the use of said label by defendant; that defendant render an account of all cigars sold by him bearing the counterfeit label or trade mark; that the damages incurred by the plaintiffs lie ascertained by the court.

These facts being admitted by the demurrer constitute,, in my opinion, a good cause of action, and the action on behalf of the plaintiffs and their associates is well brought.

The protection of trade marks was a well recognized subject of protection in courts of equity before the distinction between actions at law and suits in equity was abolished .in this state. 2 Story’s Eq. J., 951 b. c.

The gist of the action is that the defendant sold as and for the manufacture of the plaintiffs, something that was not their manufacture, and that the spurious trade mark was put on in order to make it more apparent that it was so. Burnett v. Phalon, 1 Abb. App. Dec., 270; Amoskeag Mf’g Co. v. Spear, 4 N. Y. Supr. Ct., 599; N. Y. Cab Co. v. Mooney. 15 Abb. N. C., 158.

We have admitted in the case at bar ownership by plaintiffs of the trade mark or label as designating the cigars made by them and their associates; the general recognition of such trade mark as guaranteeing that fact; the sale, imitation and use of that trade mark by defendant with fraudulent intent to induce purchasers to believe that the cigars sold by him had been made by the plaintiffs, whereas they had not been so made; and irreparable damage to plaintiffs therefrom.

In such a case, plaintiffs, if entitled to sue, are_ entitled to equitable relief and protection by way of injunction. Code, 603; Thornton v. Crowley, 47 Superior, 528; Enoch Morgans’ Sons v. Schwachofer, 5 Abb. N. C., 265, 268.

The next question is, are they entitled to sue on their own behalf and that of others?

The case is provided for either by section 1919 of the Code, or by sections 446 and 448. It is provided in section 446 that, of the parties to an action, those who are united in interest must be joined as plaintiffs or defendants except as otherwise prescribed in the act. Where the question is one of a common and general interest of many persons, or where the persons who might be made parties are very numerous and it may be impracticable to bring them all before the court, one or more may sue or defend for benefit of all.

It is admitted in the case at bar that the persons who might be made parties are so numerous that it is practically impossible to bring them before the court, and that the question is one of a general and common interest to them all. But it is contended that the case is governed by section 1919 of the Code, which, in its title, specially refers to actions by or against unincorporated associations. It is provided in that section that actions may be maintained by the president or treasurer of an unincorporated association consisting of more than seven persons for any cause of action for or upon which all their associates may maintain such action by reason of their interest or ownership therein, either jointly or in common.

The associations here represented consist of more than seven, but it nowhere appears that they have a president or a treasurer, and even if they had, I think that the section is not meant to restrict the power granted by sections 446 and 448; and that the action in its present form is well brought.

The demurrer is overruled, with costs.


author: Bradley, J.

text:
    Metropolitan Trust Company of the City of New York, Appl’t, v. Tonawanda Valley and Cuba Railroad Company et al., The Farmer’s Loan and Trust Company, Impleaded, Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed February, 1887.)

    1. Practice—Mortgage—Foreclosure of—Counterclaim—Code Civil Pro., § 501.
    An action was brought to foreclose a mortgage made by the defendant railroad company to secure the payment of its bonds. Said company was created by the consolidation of three companies before they organized. Before such consolidation one of said companies had made a mortgage upon its railroad and property to the defendant trust company to secure the payment of certain bonds, and a second of said railroad companies had made a like mortgage for a like purpose to the defendant Fish as trustee. At the time of the commenctment of this action default had been made in the payment of the interest on the bonds of all those companies. The defendant trust company by answer alleged, amongst other things, all the facts essential to the maintenance of an action to foreclose the mortgage made to it, and demanded judgment for the usual relief in such case, which answer was served upon the attorneys for the plaintiff and the other defendants. Reid, that as the alleged claim of the defendant embraced both a cause of action against the plaintiff and against some of the co-defendants and is connected with the subject of the action, and in some degree may go to diminish the plaintiff’s recovery as measured by the relief within the demand and allegations of the complaint, the relief asked- for was a proper subject of counterclaim within Code Civil Pro., | 501.
    2. Same—What connection with plaintiff’s cause of action necessary..
    The requisite of connection of the defendants’ cause of action with the subject of the plaintiff’s action is not defined or restricted by the provisions of the statute. There must only be some connection and it must have such relation to and connection with the subject of the action that it will be just and equitable that the controversy between the parties as to the matters alleged in the counterclaim should be settled in one action by one litigation. Following Carpenter v. Manhattan Life Ins. Co., 93 N. Y„ 556.
    S. Same—Parties defendant—Senior mortgagees proper parties.
    The plaintiff was at liberty to make the senior mortgagees parties defendant so as to have the amount secured by their mortgages ascertained and determined by the judgment, that they might be paid out of the proceeds of the sale, and their lien discharged, or that the sale might be made subject to the known amount of their liens.
    4. Same—Judgment should dispose of all questions—Code Civil Pro , § 1204.
    The theory and policy of the statute providing for the disposition of controversies by action is that the rights of all parties to an action as between the plaintiff and all or any of the defendants, and as between the defendants themselves shall be adjusted and declared by the judgment when the relations between them and the subject involved, are such as to permit it to be done within the practice prescribed. See Code Civil Pro., § 1204.
    Appeal by the plaintiff from a portion of judgment entered on report of referee.
    The action was brought to foreclose a mortgage made by the defendant the Tonawanda Valley and Cuba Eailroad Company to James D. Fish, as trustee to secure the payment of its bonds to the amount of $500,000, and the plaintiff was afterwards substituted in place of Fish as such mortgagee. That railroad company was created by the consolidation of three companies before then organized known as the Tonawanda Valley Eailroad Company, the Tonawanda Valley Extension Eailroad Company, and the Tonawanda Valley and Cuba Eailroad Company. Before such consolidation the Tonawanda Valley E. E. Co., had made a mortgage upon its railroad and property to the defendant, the Farmers Loan and Trust Company, as trustee to secure the payment of its bonds to the amount of $100,000. And the Tonawanda Valley Extension E. E. Company had made a mortgage on its railroad and property to the defendant James D. Fish, as trustee, to secure the payment of its bonds amounting to $70,000. When the defendant railroad company was organized it assumed the payment of the bonds of those other companies then outstanding.
    And at the time of the commencement of this action default had been made in the payment of the interest on the bonds of all those companies.
    The plaintiff in the complaint alleges a desire to have the amount of the outstanding bonds of the T. V. and the T. V. Ex. E. E. Cos. and the extent of the lien of those prior mortgages, and each of them ascertained and determined, that the amount of them may be paid out of the proceeds of the sale, or that the premises and property covered by them may be sold subject to such lien as may be just and proper, and that the F. L. and T. Co., and Fish are made parties defendant for that purpose.
    It is alleged in the complaint that defendant railroad company has made default in the payment of interest upon its outstanding bonds and those of the other companies. And amongst other relief the plaintiff demands judgment directing sale to be made “subject to the lien of the said prior mortgages to the said The Farmers Loan and Trust Company and the said James D. Fish, as trustees as aforesaid on the premises covered - by them, or that the amount of said lien be paid satisfied and discharged out of the proceeds of such sale as may be for the best interests of the parties to this action.
    The defendant The Farmers Loan and Trust Company by answer alleges, amongst other things all the facts essential to the maintenance of an action to foreclose the mortgage made by the Tonawanda Valley Railroad Company to it, and demand judgment for the usual relief in such case, which answer was served upon the attorneys for the plaintiff and the other defendants.
    The referee found all the facts requisite to the foreclosure of both mortgages, also that the defendant railroad company is insolvent, that its road could not be sold in parcels without prejudice to the interests of" the bondholders, and directed judgment of foreclosure of the plaintiff’s mortgage, and of the Farmers Loan and Trust Company mortgage with qualified provisions as to the sale, which as declared by the judgment were that the property embraced in the plaintiff’s mortgage be sold as an entirety subject to the Tonawanda Valley Extension R. R. Co. mortgage, and unless the purchaser within ninety days pay the amount secured by the Tonawanda Valley R. R. Company mortgage with costs, that the property covered by the last mentioned mortgage may be sold separately to pay off the amount due on it with costs; and that the purchaser of the entire property shall not receive a deed for the entire property pursuant to such sale until the T. V. R. R. Co. mortgage, with costs shall have been paid unless such deed by its terms shall be made expressly subject to the provision of the judgment in regard to a separate sale of the property embraced in the T. V. R. R. Co. mortgage in case of failure of the purchaser to pay it. And the judgment contains various other provisions to which it is unnecessary to particularly refer, for the purposes of the questions here.
    The plaintiff took exceptions to the conclusions of law, and to refusal to find as requested. The plaintiff appeals from the part of the judgment granting such relief to the defendant.

      Thomas G. Hillhouse, for app’lt; Herbert B. Turner, for resp’t.
   Bradley, J.

The plaintiff was at liberty to make the senior mortgagees parties defendant, so as to have the amount secured by their mortgages ascertained and determined by the judgment, that they might be paid out of the proceeds of the sale, and their lien discharged, or that the sale might be made subject to the known amount of their liens. Western Ins. Co. v. Eagle Fire Ins. Co., 1 Paige, 284; Vanderkemp v. Shelton, 11 id., 29; Holcomb v. Holcomb, 2 Barb., 20; Emigrant Industrial Sav. Bank v. Goldman, 75 N. Y., 127. The desire expressed in the complaint is to have the amount of those mortgages ascertained that the amount may be paid out of the proceeds of the sale, or that the premises may be sold subject to their liens, and judgment is in like manner in the alternative demanded.

The question is whether the defendant, The Farmers Loan and Trust Company, could properly set up in the answer and make available by the judgment the matter alleged, and the demand for affirmative relief by way of foreclosure of its mortgage, and sale of the premises and property covered by it. This defendant could have brought its action in the nature of a cross-bill for such relief. The right to seek it as a defendant is dependent wholly upon the statute. And the inquiry arises whether it is a counterclaim within the moaning of the statute, which provides that the answer may contain a statement of new matter constituting a counter-claim (Code Civ. Pro., § 500); that the counter-claim “must tend in some way to diminish or defeat the plaintiff’s recovery,” and must be a cause of action “against the plaintiff, or in a proper case, against the person whom he represents, and in favor of the defendant, or of one or more defendants, between whom and the plaintiff a separate judgment may be had in the action.” And such cause of action must arise “out of the contract, or transaction set forth in the complaint as the foundation of the plaintiff’s claim, or connected with the subject of the action.” Or 2. “In an action on contract, any other cause of action on contract, existing at the commencement of the action.” Id., § 500. And in such case, when entitled thereto, the defendant may have judgment for the affirmative relief demanded in the answer. Id., § 504. The subject of the plaintiffs’ action is the mortgage made by the consolidated company, and the property covered by it, which embraces that in the senior mortgage of the defendant, and the purpose of the action is to foreclose the mortgage and sell the property. It is contended on the part of the plaintiff that the cause of action alleged in the answer is not a cause of action against the plaintiff, and does not tend to diminish or defeat the plaintiff’s recovery, and that it is not connected with the subject of the action. The plaintiff, as a junior mortgagee, would be a necessary party defendant in an action to foreclose the senior mortgage. That situation seems to be sufficient to constitute a cause of action against the plaintiff within the meaning of the statute. The affirmative relief demanded by the answer, and given by the judgment, in some sense qualifies or diminishes the plaintiff’s recovery, in view of the allegations of the complaint and the relief demanded by it, and yet preserves all the rights to which the junior mortgagee is entitled, and affords to the senior one only such priority as it is entitled to. Andothis is a legitimate result if the matter alleged in the answer is in other respects within the requirements of a counter-claim.

In Vassear v. Livingston (13 N. Y., 248), the plaintiff was not a proper party to any action in favor of the defendant upon the claim, alleged. And it was not a counterclaim, because it was no cause of action against the plaintiff. And to the same effect is Frick v. White, 57 N. Y., 103, 107.

While the defendant is not a necessary party defendant to the action for the foreclosure of the plaintiff’s mortgage, and the defendant’s cause of action may not arise out of the contract or transaction set forth" in the complaint as the foundation of the plaintiff’s claim, it seems to be connected with the subject of the action. The requisite of connection of the defendant’s cause of action with the subject of the plaintiff’s action is not defined or restricted by the provisions of the statute. There must only be some connection. And it has been said that it “must have such relation to, and connection with the subject of the action, that it wifi be just and equitable that the controversy between the parties as to the matter alleged in the complaint and in the counter-claim should be settled in one action by one litigation.” Carpenter v. Manhattan Life Insurance Co., 93 N. Y., 556.

The theory and policy of the statute providing for the disposition of controversies by actions is that the rights of all parties to an action as between the plaintiff and all or any of the defendants, and as between the defendants themselves shall be adjusted and declared by the judgment, when the relations between them and the subjects involved,, are such as to permit it to be done within the practice prescribed. Code Civ. Pro., § 1204; Derham v. Lee, 87 N. Y., 599.

_ In Rafferty v. Williams (34 Hun, 544), cited by the plaintiff’s counsel, the controversy presented by the answer was wholly, between the defendants, and had no relation to the subject of the action. And .the court held that it was not within section 1204 of the Code.

But prior to the present Code, the affimative relief sought by the defendant in this action was not available as a counterclaim, because the practice did not provide for service of pleadings by one defendant upon another, and thus permit to be brought before the court upon the cause of action so alleged by a defendant, the other parties defendant requisite to the determination of the claim.

The statute now, in view of such practice, provides that “ where the judgment may determine the ultimate rights of two or more defendants as between themselves, a defendant who requires such determination must demand it in his answer, and must at least twenty days before the trial serve a copy of his answer upon the attorney for each of the defendants affected by the determination,” etc. Code Civ. Pro., § 521. This service was made and all the parties requisite to the relief so far as appears, were thus brought into the controversy tendered by the defendants answer of the alleged counter-claim.

That section, and this proceeding under it, extended the application and practical effect of Code Civ. Pro., § 1204. Kenney v. Apgar, 93 N. Y., 539, 547. And as the alleged claim of the defendant, embraces both a cause of action against the plaintiff and against some of the co-defendants, and is connected with the subject of the action, and in some degree may go to- diminish the plaintiffs recovery as measured by the relief within the demand and allegations of the complaint, the relief asked for and obtained by this defendant, seems to come within the meaning of the statute defining a counter-claim. This does not necessarily result from or require the conclusion of any enlargement of the power of the court by the provisions of section 521, but as a matter of practice extended and regulated by that section, the manner of the exercise of the power of the court is enlarged and the means are provided to parties defendant in proper cases to extend the operation and effect of the provisions of section 1204, and embrace within the term counter-claim some claims which before then the practice provided by the statute did not permit to be made available as such. Albany Savings Inst. v. Burdick, 87 N. Y., 40.

The practice as applied to a case of this character, and the judgment as rendered in this action, we think are not in contravention of any provision of the statute providing for the foreclosure of mortgages by action and the sale of the premises pursuant to judgments therein. And there seems to be no impropriety in providing for and pursuing the practice adopted in this case.

The rights of the parties are as effectually preserved in the one as they could have been in two distinct actions. And it is not seen that the interests of the parties represented by the plaintiff are prejudiced by the dual relief given by the judgment.

There is no force in the objection that the answer did not in express terms define as a counter-claim the matter set up as such, inasmuch as it distinctly appears by the relief demanded that it was intended as a counter-claim.

None of the plaintiff’s exceptions presented here for consideration seem to have been well taken.

The portion of the judgment appealed from should be affirmed. D

Barker and Haight, JJ., concur.