text:
    Henry P. Durfee et al. v. Frances Pomeroy et al.

    (Supreme Court, Appellate Division, Fourth Department,
    June 17, 1896.)

      1. Wills—Suspending poaver of alienation,
    A bequest of a trustee to pay the income to R. until 45 years old, and then turn over the property to iiim, hut if he should die before reaching the age of 45 years, leaving a widow, to pay one-lialf of the income to her . so long as she should remain his widow, suspends the power of alienation longer than two lives in being (1 Rev. St. p. 773, § 1), where R. was not married at the time of testator’s death, since he might marry some one who was not horn at the time of testator’s death,
    S. Same—Trust or absolue legacy.
    Testator, after malting certain provisions for his daughter and his son, R., gave the residue of his estate te his executors in trust to pay one-lialf ■of the income to R. until 45 years old, and then to transfer one half of such residue to him, or to his children, if any, should he die before attaining the age of 45 years. The will further provided that should R. die within the period, leaving a widow but no children, the widow should have one-half of the income which R. had enjoyed, so long as she remained his widow. Held,' thas testator’s evident intent was to provide for his children during their lifetime, and to secure his property to his grandchildren, and therefore the provision in favor of R.’s widow could not be withdrawn from the trust so as to take it out"of the operation of the statute of perpetuities.
    Appeal from special term, Ontario county.
    Action by Henry R. Durfee, Samuel B McIntyre, and another, as executors of the will of Charles G-. Pomeroy, deceased, against Frances Pomeroy and others, to obtain a judicial construction of a will of plaintiffs’ testator. From a judgment that part of the will violates the statute against perpetuities, defendant Frances Pomeroy appeals.
    The opinion of Mr. Justice ADAMS at special term is as follows:
    The plaintiffs, who are the exeutors of the will in qufestion, in their complaint allege that construction of that instrument, in several important particulars, is necessary to the due and proper administration of the estate committed to their charge; but, by consent of all parties, the only question which is at present submitted to the court for its. adjudication is that which relates to the interest in such estate of the defendant Frances Pomeroy. In order to clearly appreciate the attitude towards the estate which this defendant occupies, it will be necessary to detail with considerable particularity the disposition which the testator has attempted to make of his property, and the conditions existing at the time of his death. He died leaving two children,—a son and a daughter. The son, Rhea, was a young man of intemperate habits, and the defendant, who is his widow, was a domestic in the testator^s family. There is some reason to suppose that the son’s attachment for her was known to the father, but, however this may be, it is a matter of minor consequence. By the first clause of the will, this son is given a life estate in the homstead, with remainder over to his sister, Eliza A. McIntyre, in the event of his dying without children; by the second clause, certain specific personal property is given absolutely to the son; and by the third or residuary clause, all the rest, residue, and remainder of the testator’s estate, both real and personal, is devised and bequeathed to his executors in trust for the purposes thereinafter named. The trust thus created contemplates, among other things, the payment of one-half of the income arising from the trust 'estate to Rhea, until he shall attain the age of forty-five years; and when that period arrives the corpus of his share of such estate is to be transferred to Mm absolutely, if in the judgment of the executors, he is then a sober man, and fit to be intrusted with said property,” but in case of his death before reaching the age of forty-five years, leaving a child or children him surviving, the executors are directed to transfer his share of the estate to such children. But in the event of his death witMn the period last aforesaid, leaving a widow but no child or children, then the will further provides that: “I devise and bequeath to her one-half of the income of said half of the rest, residue, and remainder of my said property so long as she shall remain his widow.” And in case she should marry again her share of such .income is given to the daughter, Eliza A. McIntyre, who also receives a life interest in the renaming moiety of the residuary estate. The will in question bears date the 4th day of August, 1884. The testator died December 14, 1887, leaving considerable real estate, and also personal property to the amount of at least $14,000. Shortly after his death, Rhea was married to the defendant, and soon thereafter, and prior to his arrival at the age of 45, he departed this life, leaving the defendant, but no child or children, him surviving. The widow, who has never remarried, now inists that by the terms of the will she is entitled to the income, during her life or widowhood, of one-quarter of the residuum of the estate, whatever that may prove to be; and it is the claim thus urged that raises the issue -which, in its determination, seems to demand a legal construction of the will in question.
    The first proposition suggested by a reading of this instrument is that it contains an attempted suspension of the power of alienation of a portion of the testator’s property beyond the period permitted by the statute; in other words that inasmuch as Rhea did not marry until after the death of his father, there Avas a life possibly not in being at the time provision Avas made for his Aiidow’s enjoyment of an interest in the testator’s estate, and that, consequently, such provision is repugnant to the statute of perpetuties (1 Rev. St. p. 773, § 1), and therefore Amid. Such, indeed, does seem to be the laAV of this state. It is perhaps carrying the doctrine to-an extreme limit, and it is a rule which aaüII undoubtedly prove a harsh one in many cases, and perhaps in none more ■ so than in the case under consideration, Avhere it Avas unquestionably the intention and desire of the testator to make some provision for his son’s Avife, in the contingency of his marrying and leaving a AAÚfe surviving him. But the court can not concern itself with the operation of any rule. It must apply the laAV as it finds it, and it is certain that the principle contended for has been adjudicated in a case, the circumstances of which Avére not unlike those which are being considered; and that adjudication has, in several instances, being quoted Avith approval by the court of. last resort. Schettler v. Smith, 41 N. Y. 328; Burrill v. Boardman, 43 N. Y. 259; Knox v. Jones, 4 N. Y. 397; Smith v. Edwards, 8 N. Y. 104; Tiers v. Tiers, 98 N. Y. 573; Haynes v. Sherman, 117 N. Y. 437, 27 St. Rep. 254; Underwood v. Curtis, 127 N. Y. 540, 40 St. Rep. 255.
    Recognizing the fact that this court must, of necessity, be concluded in its determination of this question by the authority first cited, the defendant’s counsel insists that the Avill is capable of. a construction which renders the laAV of that case inapplicable, and. suggests that the provision for the defendant be regarded as AvithdraAvn from the trust, and treated as an absolute legacy of the one-fourth part of the income of the testator’s estate. This contention is presented most elaborately, and with no little adroitness, certain words and phrases being ingeniously selected, which, isolated from their context, Avould seem to warrant such a construction; and then counsel seeks to fortify his position Avith the further suggestion that the construction for which he contends AArould enable the court to regard the obvious intention of the testator. But while anxious, to sustain, rather than to invalidate, every testamentary disposition of property, where the intention of the testator is made clearly manifest, the court cannot, even for the accomplishment- of so desirable a result, do violence to certain Avell-established canons of construction, one of AAdiich is that, Avhen the general plan or scheme of a testator is ascertained, effect must be given to it, even at the sacrifice of a particular intention AA'hieh is inconsistent Avill). it. See opinion of Sutherland, J., in Lovett v. Kingsland, 44 Barb. 561-567. The first endeavor, therefore, must be to determine, if possible, upon what general plan or basis the testator designed the disposition of his estate. Fortmiatley the language of his will, taken as a AAdiole, leaves very little room for doubt upon this subject; for it requires but a casual examination to reach the conclusion that the prime object which he had in mind, so far as the residuum of his estate concerned, Avas the making of a suitable provision for his oayii children during their lifetime, with the ultimate intention of securing to his grandchildren the corpus of the estate, and to this end a trust Avas created, and the trust estate Avas to consist of the entire residium, Avhatever it might be. It is true that in making provision for the possible contingency that his son would marry, and then die leaving a avíJoav and no children, he uses this language: “Then she [meaning the Avidow] is to have, and I devise and bequeath to her, one-half of the income of said half of the rest, residue, and remainder,” etc. But how can the meaning which is sought to be given to these words be made to harmonize with the primal idea that his trustees were to take control of all his residuary estate, and which is expressed in the phrase, “All the rest, residue, and remainder of my real and personal property and estate, and every name, kind and nature, wheresoever situate, I will, devise, and bequeath to my executors hereinafter named, and their successors, in trust, upon and into the uses, purposes, and trusts hereinafter named”? There are no succeeding words, which, in express terms, withdrew any portion of the residuum from the trust estate, and to imply any such intention on the part of the testator would result in much confusion and lack of harmony, for in other parts of the will direction is made that from the net income of the estate one hundred dollars shall be expended annually in repairs to the homestead; that a monument costing not to exceed six hundred dollars shall be erected, and paid for out of the income of the whole estate; and that the support and maintenance of one Euretta Mills, as well as her funeral expenses, shall be provided for from the same source. If, then, the provision for the defendant is to be regarded as a bequest of income, it is certainly subject to proper deductions for the purposes just specified, and these deductions must necessarily be made by some one other than the defendant. The mere statement of this proposition is sufficient, 1 think, to show quite conclusively that whatever interest the defendant might have in the estate was inseparable from the trust, and, if so, then it is impossible to give to the will of the construction contended for.
    The learned counsel for the defendant cites several authorities whch he insists fully support him in the position he occupies, but it seems to me it is not a difficult matter to distinguish (hem from the casein hand. In Mason v. Jones, 2 Barb, 229, upon which much stress is apparently laid, the testator had devised to his executors, in trust, one-half of the estate, from the income of which they were directed to pay certain specific annuities to the annuitants therein men” tioned; and, in order to uphold the will, this court held that several trust funds were created, and that the annuities were a charge upon the estate. But, as has been stated, the rents and profits were not to be distributed among certain beneficiaries; but from that source annuities which were certain in their amount were to be paid to them. The facts in the case of G-riffen v. Ford, 1 Bosw. 123, were quite different from those in the present case. There the testator directed his trustee to apply so much of the rents and profits of his estate as might be necessary towards the support and maintenance of his wife as long as she remained his widow and it was held that this was in the nature of an annuity; that it did not effect a suspension of the power of alienation, because it was within the power of the trustees or of the court to fix upon a specific sum to be set apart for the widow’s support, or it was within her power to accept a gross sum and release the estate. But such is not the case with the defendant, for, as has already been shown, her interest in the estate could only be satisfied by transferring to her one-quarter of the net anual income of the estate during her widowhood, which may be equivalent to saying during her lifetime. The case of Matteson v. Matteson, 51 How. Prac. 276, is one in which it appears that the testator created no trust, but gave directly to his wife one-half of all the income of his real and personal estate, which, of course, amounts to nothing more than a charge upon the - estate, and does not suspend the power of alienation. This would be ample authority for the defendant, if, as claimed, her interest in the testator’s estate were not affected by, and embraced in, the trust. To epitomize the whole matter, I am persuaded that the will under consideration must be construed to contain a trust which embraces the defendant’s interest in the estate; that such trust is one expressly recognized by the statute (1 Rev. St. p. 728, § 55, subd, 3); that the necessary effect thereof upon so much of the estate as would otherwise belong to the defendant is to create an illegal suspension of the power of alienation, as to such portion; that upon the death of Rhea Pomeroy one-quarter of the residuary estate of Dr. Pomeroy became the absolute property of his daughter, Eliza A. Pomeroy; and that she was likewise entitled to the income from the remaining quarter during her lifetime. Further construction does not seem to be required by the exigencies of the case, and therefore judgment is ordered in accordance with the views herein expressed, with costs to both parties to be paid out of the estate.
    Edwin K. Burnham (Stephen K. Williams, of counsel), for appellant.
    Henry R. Durfee and Samuel B. McIntyre, in pro. per.
   PER CURIAM.

Judgment affirmed, on the opinion of ADAMS, J., delivered at special term, Avilh costs and disbursements to respondents and appellant, payable put of the estate.


source: Caselaw Access Project

author: PATTERSON, J.

license: Public Domain

text:
    People ex rel. William H. Hart v. O. H. La Grange et al.

    (Supreme Court, Appellate Division, First Department,
    June 29, 1896.)
    1. Officer—Removal—Abohshihp office.
    The board of fire commissioners of New York City have no power to abolish an office merely for the purpose of removing the incumbent in order that they may appoint another to perform the same duties.
    3. Same—Review—Good faith.
    The court has the power to inquire into the good faith of the action of the fire commissioners of New York City in abolishing an office in the department.
    Appeal from special term New York county.
    Application by William H. Hart for a writ of mandamus to compel 0. H. La Grange and others, constituting the board of commissioners of the fire department of New York City, to reinstate relator in an office from which he had been removed. From an order granting a peremptory writ, defendants appeal.
    W. L. Findley, for appellants.
    R. D. Hatch, for respondent.
   PATTERSON, J.

There was abundant evidence produced in the court below to require the issuance of the peremptory writ of mandamus in this matter. The only question before the court was whether the action of the commissioners of the fire department in discharging the relator was a legitimate exercise of the power they possessed to abolish the office he held, and thereby dispense with his services, or vas a mere pretext to remove him in order that they might put some one in his place. It is manifest that the relator was discharged on the mere pretense that his office was to be abolished, and a man named MoLewee was immediately assigned to do the same work that the relator had done. This man, MoLewee, had been an employe of the fire department, filling a place which had been abolished by a resolution of the board, which resolution remained \mresoinded at the time this relator was removed from his position; add it is painfully apparent that the relator was thrust aside simply for the purpose of retaining McLewee in employment and under the pay of the board, although the place he had filled had been abolished. Not only was the alleged reason for the discharge of the relator and the retention of McLewee (who was virtually a discharged employee) a mere sham, but McLewee was ineligible to fiU the place even had the relator’s office been abolished, for he had not passed the civil-service examination required by law, and in no sense could McLewee be regarded as a transferee from one position to another.

The courts have the right to inquire into the good faith of the action of the commissioners in a case of this kind, and the order appealed from should be affirmed, with costs.

All concur.


author: PER CURIAM.

text:
    Matter of the Estate of Michael N. Wiener.
    (Supreme Court, Appellate Division, First Department,
    September 9, 1896.)
    Claims against decedents—Deficiency judgment—Compelling payment.
    Where a mortgage given by decedent is about to fall due, and it is doubtful whether the premises will sell for enough to pay the mortgage debt, an appl’cation of another mortgage creditor, who had foreclosed his mortgage, and obtained a deficiency judgment, for an order directing the executor to pay the deficiency judgment out of the assets in his hands, should be denied until it can be ascertained by foreclosure sale whether the property subject to the undue mortgage will sell for enough to satisfy such mortgage.
    Appeal from surrogate’s court, New York county.
    Motion by the Mutual Life Insurance Company of New York to compel Henry W. Johnson, as executor of the will of Michael N. Wiener, deceased, to pay to petitioner or his attorney the sum of $4,908.50, and interest thereon from January 12, 1895, being the amount of a deficiency judg ment rendered on foreclosure of a mortgage executed by decedent. The application was granted, and the Washington Life Insurance Company appeals.
    Decedent was indebted to the Mutual Life Insurance Company of New York and to the Washington Life Insurance Company in large sums secured by mortgages. On the application by the executor for a final judicial settlement of his accounts while a proceeding for the foreclosure of the Mutual Company’s mortgage was pending, the Washington Company filed objections to the account filed, setting up the indebtedness of testator to it, and asking that the court direct L'iie executor to hold the assets of the estate until the mortgage held by said company should become due, and it should be ascertained whether the security covered by said mortgages would be adequate to the full payment thereof. The mortgages held by the Mutual Company were foreclosed, and the sale' resulted in a deficiency judgment of $4,908.50. The mortgage held by the Washington Company became due on June 1, 1896. The application by the Mutual Company to compel payment of the deficiency judgment was made on March 27, Í896.

      Foster & Thomson, for appellant.
    J. E, Hamblen, for respondent.
   PER CURIAM.

The motion for the payment of claim by the Mutual Life Insurance Company, based on its petition,, was noticed for the ‘27th day of March, 1896, and the last affidavit made in support thereof was sworn to on the 19th day of May, 1896. The due date of the mortgage of the Washington Life Insurance Company was June 1, 1896. In view of -that fact, we think it would have been proper, where the question of the value of the security was involved, and it could be rendered certain by the proceeding to foreclose, which the attorneys for the Washington Life Insurance Company were instructed to institute, to await the result, when it could be definitely determined whether the property was sufficient or not to satisfy the debt; and that it was improper, in that state of the record, to decide the motion, and direct the payment of the deficiency judgment of the Mutal Life Insurance Company.

We, think, therefore, the order should be reversed, and the motion remitted to the surrogate to take further proof, with $10 costs and disbursements of this appeal to abide event.


author: LANDON, J.

text:
    William Lord v. John H. Cronin.
    (Supreme Court, Appellate Division, Third Department,
    September 14, 1896.)
    Contracts—Interpretation.
    A husband signed a writing reciting that his wife had loaned him a certain sum of money, and covenanting that if he should die before her, the-amount should be a charge on his estate, to be paid as a debt owing by him, and that certain real estate owned by him should be conveyed to her, but that, if she should die first, “then this agreement shall be of no effect.’1' Held, that the husband, on surviving his wife, was not discharged from, liability for the debt.
    Appeal from circuit court, Rensselaer county
    Action by William Lord, as executor of the will of Martha A. Cronin, deceased, against John H. Cronin, From a judgment dismissing the complaint in pursuance of a verdict directed by the court in favor of defendant, plaintiff appeals.
    The action was to recover $8,000 alleged to have been loaned by Martha A. Cronin, deceased, to the defendant, her husband, May 2, 1892, upon defendant’s promise to repay the same with interest upon demand. The plaintiff proved that the wife loaned her husband the $8,000, and thereupon the defendant executed and delivered to her the following in-strument, and thereafter, and before the commencement of this action, the wife died. The plaintiff is her executor.
    “This agreement, made this second day of May, in the year of our Lord one thousand eight hundred and ninety-two, between John H. Cronin and Martha A. Cronin, of the city of Troy, county of Rensselaer, and state of New York, witnesseth: That in consideration that my wife, Martha A. Cronin, has this day mortgaged certain premises of hers situated upon the northwest corner of Fulton and Mechanic streets, in said city of Troy, to Samuel P. McClellan, as executor of the will of Jane Calkins, deceased, for the sum of eight thous- and dollars, at my request, and has loaned to me said sum so borrowed as aforesaid, now, in consideration thereof, I, John H. Cronin, husband of the said Martha A. Cronin, do hereby covenant and agree that if it shall occur to me to die before the decease of the said Martha A. Cronin, the said sum of eight thousand dollars so procured as aforesaid shall be a charge upon my estate, and shall be paid as a debt owing by me, I having become a party to the bond given upon such borrowing; and I further agree that in such case my executor or administrator or personal representatives shall convey to the said Martha A. Cronin, surviving me, all my one-half interest in the premises known by street numbers one hundred and seven Fourth street, and two thousand two hundred and sixty Fifth avenue, in the city of Troy, to have and to hold unto the said Martha A. Cronin, her heirs and assigns, forever. But if the said Martha A. Cronin shall not survive me, then this agreement shall be of no effect,
    “In witness whereof, I, the said John H. Cronin, have hereunto set my hand and seal in duplicate this second day of May, 1892,
    “J. H. Cronin. [L. S.]”
    Charles E. Patterson, for appellant.
    Edwin Countryman, for respondent.
   LANDON, J.

The instrument is evidence of the loan, and provides that, in case the husband should die before his wife, she should not only be fully paid, but should be entitled “to all my one-half interest” in certain real estate. Might not the husband have tendered repayment of the loan to the wife while she was yet living, and thus have canceled the obligation? It ivas a loan, therefore an indebtedness, and therefore payable. There is no contract upon her part exempting her from obligation to receive payment whenever tendered. If he should die first, he promised that the loan should be paid, and additional benefits be given his wife-Suppose, meantime, he had sold his interest in his real estate contingently promised to his wife. It is not clear that she would have had any equitable interest in it, “But, if the said Martha A. Cronin shall not survive me, then this agreement shall be of no effect.” This declares that the instrument is now, such contingency having happened, of no effect as an agreement. If,' so, then its terms do not determine the rights of the parties. Nothing remains of it as an existing agreement, but it is still the declaration of the deendant that his wife loaned him the money in question. Certainly it was the intention of the parties that, if she should not survive him, her heirs should not have the real estate. But there is nowhere any agreement upon her part that .she renounced in such event her title to the debt due from him on account of the loan. In short, this agreement-effective to the extent of its terms, in the event of certain contingencies—does not state that, if the wife cannot be paid in the way stated, she or her estate shall never be paid. By her prior decease the written agreement is made of “no effect,” and the parties are remitted to such obligations and duties as the loan and its nonpayment imply. We do not think the agreement usurious. There is no certain agreement to pay excessive interest. Insurance Co. v. Dunham, 33 Hun, 415.

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

HERRICK and MERWIN. JJ., concur. PARKER, P. J., and PUTNAM, J., dissent.


text:
    Dewitt A. Hayes v. Simeon S. Gross.
    (Supreme Court, Appellate Division, Third Department,
    September 14, 1896.)
    1. Contracts—Destruction of subject before completion.
    A contractor for the carpenter work in a building in course of erection is entitled to recover from the owner the value of the materials used and the work done by him where the building was destroyed by fire before the contract was completed.
    3. Same—Amount of recovery.
    Where a building for which plaintiff had contracted to do the carpenter work is destroyed by Are before completion, plaintiff is not entitled to recover the value of materials which he had procured for use in the building, but had not actually used at the time of Are.
    Appeal from judgment on report of referee.

      Action by Dewit A. Hayes against Simeon S. Gross - There was judgment in favor of plaintiff, and defendant appeals.
    The action was to recover for labor performed and materials furnished by the plaintiff in the erection of an hotel building under a contract with the defendant, the owner thereof, Avhich building, after the plaintiff had nearly performed his contract, was destroyed by fire; also, for extra work done by the plaintiff thereon at the defendant’s request. The building atos a large brick structure, and when ready for the inside carpenter and joiner work, the plaintiff agreed with the defendant to furnish the materials and to do that work for $13,675, 75 per cent, of the amount performed from time to time to be paid as the Avorlc progressed, upon the architect’s certificate, and the balance when the Avorlc was fully completed and accepted by the defendant and the architect. The plaintiff commenced performance in March, 1891. The building was destroyed by fire October 2, 1891. The referee found that the fire occurred without the fault of either party. While the plaintiff was engaged in his work, the defendant, by his other contractors and workmen, Avas also engaged upon other parts of the building. At the time of the fire, and for a considerable time prior thereto, the plaintiff had the keys of the building, and kept it closed and locked during the nighttime, opening it in the mornings. There Avas no agreement in this respect. At the time of the fire, the defendant had paid the plaintiff $7,361.93 upon the contract. The value of the Avork and the materials furnished by the plaintiff up to that time exceeded that amount. The contract contained no-provision respecting the destruction of the building by fire. The referee held that the plaintiff Avas entitled to recover for the work and the materials furnished in performance of the contract up to the time of the fire at contract prices, also for his extra work, and directed judgment against the defendant in Jlie sum of $3,241.70, with costs. The defendant appeals.
    Edgar A. Spencer, for appellant.
    A. D. L. Baker, for respondent.
   LANDON, J.

When a builder agrees to erect and complete an entire house, if the house is destroyed by fire before completion, the builder can erect another;^ and, if he does not do so, he is guilty of a breach of his contract. Tompkins v. Dudley, 25 N. Y. 272. But if a painter agrees to naint a certain house,and the house is destroyed before the painting is finished, it is impossible for him to complete his contract. If a new house should be erected, it it would not be the house he had agreed to paint. Why should not the painter be paid for his part performance? It was no fault of his that full performance was impossible. Whelan v. Clock Co., 97 N. Y. 293. But why should the owner pay? Because every stroke of the painter’s brush converted something of the painter’s labor and material into the property of the owner, and thus* the fire destroyed the owner’s property, and not the painter’s. If the painter had been painting a boat which he had agreed to make and deliver to the vendee, and fire had destroyed it before delivery, the whole loss would have been his, and not the vendee’s, since title would not pass until delivery. Andrews v. Durant, 11 N. Y. 35. In Wolfe v. Howres, 20 N. Y. 197, a mechanic agreed to do for an entire year all the pot room work necessary to be done in defendant’s glass works for $40 per month, $10 of it to be paid monthly. He performed as he agreed from May until December, when he was disabled by sickness of which he subsequently died.. His representative was held entitled to recover the sum unpaid for the time he actually served. Why not? It wras impossible for him to complete his contract, and the defendant had the benefit of what he did do. If a trader agrees to sell and deliver to B. 607 bales of cotton, marked “X,” stored in his warehouse, and does deliver 460 of them, and the remaining 147 bales are destroyed by fire before delivery, of course he cannot deliver them, and the law excuses him. Dexter v. Norton, 47 N. Y. 62. But the vendor being without fault, if the vendee refuses to return the 460 bales which he has received, and to which he has no title, he ought to pay for them unless the same fire also destroyed them. Kein v. Tupper, 52 N. Y. 550. Of course, the loss of the undelivered bales falls upon the vendor.

In the ease before us, the defendant owned the building, and the plaintiff was under a contract with him to do certain specified carpenter and joiner work therein, and to furnish the materials therefor, for a price fixed for the whole, to be paid, however, in installments as the work advanced. The plaintiff had performed a large part of the woik as agreed, and had been paid several installments when the building was destroyed by fire without fault by either party. If the views above expressed are correct, then the plaintiff is excused from further performance, because it became impossible without fault of his own, and he is entitled to recover for all the labor and material which he added to the house, because his further performance is impossible, and therefore cannot be interposed as an obstacle to his recovery, and also because what he thus added became the defendant’s property, and thus the fire destroyed the defendant’s, and not the plaintiff’s, property.

The learned referee placed his decision in favor of the plaintiff upon Niblo v. Binsse, 40 N. Y. 476, a case in its particulars almost identical with the one before us. The learned referee reluctantly yielded to the authority of that case, because of the similarity of its facts to this case, at the same time confessing that he could not harmonize it with the numerous cases which hold that, when performance of a contract depends upon the continued existence of its subject-matter or of some other essential, the law implies that the contract is based upon such continued existence; and, such existence ceasing, the obligation of the contract ceases, leaving each party without recourse to the other, on account of any breach of the contract. Dexter v. Norton, supra; Goldman v. Rosenberg, 116 N. Y. 78, 26 St. Rep.-378; Lorillard v. Clyde, 142 N. Y. 456, 59 St. Rep. 781; Stewart v. Stone, 127 N. Y. 500, 40 St. Rep. 314; Taylor v. Caldwell, 3 Best. & S. 826, 113 E. C. L. 824. These cases simply denied the right of recovery of damages for breach of the contract. In Dexter v. Norton the plaintiff sought to recover the damages he sustained because the defendant did not deliver him the 147 bales of cotton which the fire destroyed. In Goldman v. Rosenberg the plaintiff sought to compel the defendant to complete his purchase of a lot which had a valuable building upon it,, that was destroyed by fire before the day fixed for the performance of the contract, or to charge the defendant with damage for his nonperformance, the action being for an accounting between partners. In Stewart v. Stone the patron of defendant’s chese factory, to whom the patron had delivered milk to be made into cheese at a stipulated price, sued to recover for the cheese which was destroyed by the destruction by fire of the factory, without fault of the defendant. In Lorillard v. Clyde both parties were interested in a corporation which the plaintiff was induced to enter, upon the defendant’s guarranteeing that it would pay a certain annual dividend for seven years. The corporation was dissolved at the suit of the attorney general at the end of five years. The plaintiff sought, nevertheless, to recover the dividend upon his shares of stock for the two years following its dissolution. In Taylor v. Caldwell the defendant agreed to let the plaintiff his music hall for four nights. Before the first night arrived, the hall was des troyed by fire, without fault of defendant. The plaintiff sought to recover damages for nonperformance. In all these cases the plaintiff failed to recover, because in each case the law implied the condition of the continued existence of the subject-matter of the contract or of an essential respecting it; that is to say, the defendant was not at fault for its breach. In none of them was it decided that an innocent contractor, who has added his labor and materials to the owner’s property, cannot recover for them when the owner has lost his property by fire, and the contractor is by the fire, Avithout fault on his part, both prevented and excused from adding the balance of labor and material which his contract called for. The noncontinuance of the subject-matter excuses him from further performance; but Ave see no reason Avhy his employer should not bear his OAvn loss, and pay for the property which he acquired. When part performance has been made, and there is a legal excuse for further performance, then there is no legal defense to the demand for payment for part performance, unless it is in such a case as is suggested by Johnson, C. J., in Wolfe v. Hoavcs, 20 N. Y. 197, namely, “that it Avas material that the defendants had received actual benefit from the services of the plaintiff’s testator, and that quite a different question Avould be presented Avhere the services actually rendered should prove valueless; as, e. g., if one should be retained to compose an original literary Avork, and, having faithfully employed himself in preparation, should die Avithout haying completed any Avorlc of Aralue to the employer.” The report adds that “ Comstock, J., and other judges concurred in this qualification.” In the case before us the defendant received actual benefit from plaintiff’s services, but because of the fire, lost it. We think Niblo v. Binsse, upon AA'hich the learned referee relied, Avas correctly decided, but AA'itli due respect, Ave submit that the decision Avas placed upon untenable ground. The court said that it placed its decision upon the ground that the contractor was prevented from performing his contract by the default of the OAvner in failing to keep on hand and in readiness the building in AArhich the Avork was to be done, and Avas in default Avhether the building Avas destroyed with or without fault on his part. The case sIioavs that the building was destroyed Avithout fault of either owner or contractor. If the defendant Avas without fault in the destruction of his building, it is difficult to see how he was in default for not keeping it on hand. In the Niblo Case, as in the one under revieAv, Ave think the destruction of the building prevented and excused the defendant from keeping it on hand, and that neither party could recover damages of the other upon account of the breach of the contract thereby caused. Authorities in other states, while denying the right of either party to the contract to recoArer of the other damages of a breach of the contract Avhen performance is defeated by the destruction of the building (except in cases like Tompkins v. Dudley, first above cited, where the terms of the contract preclude implying the condition of its continued existence), affirm the right of the contractor to recover from what he has done and furnished up to the time of its destruction. Butterfield v. Byron, 153 Mass. 517, 27 N. E. 667; Cook v. McCabe, 53 Wis. 250, 10 N. W. 507; Haynes v. Second Baptist Church (Md.) 57 Am. Rep. 413.

It follows that the judgment should be affirmed, unless the record shows some error to the prejudice of the defendant. The measure of damages stated by the learned referee in his opinion is the value of the labor and materials furnished and Ms proportionate profits to the time of the fire. He applied this rule by allowing the contractor the contract rates for his labor and material. This, we think, was right. He, however, allowed the plaintiff $309.10 for materials which he had procured in order to place them in or upon the building, but which he had not actually placed at the time of the fire. These items Ave cannot alloAV, since they had not been added to the building, and therefore Avere not defendant’s property. Although the action is not upon the contract, the contract affords the best evidence between the parties as to the value of the labor and materials furnished. There are authorities to the effect that Avhere the contractor is'to be paid in installments, upon the completion of certain parts of the Avork, each installment becomes a debt as the particular portion specified is completed; and, as to the incompleted portion at the time of the fire, no recovery can be had, because the installment is not due. Richardson v. Shaw, 1 Mo. App. 234; Clark v. Collier, 100 Cal. 256, 34 Pac. 677. Add. Cont. (9th Ed.) 809. If the action were upon the contract, this would be so; but, as it is not, the rule should not apply. The contract no longer binds the parties, or, if it does, its breach is excused, and therefore the breach is not available to defeat recovery for Avhat has been done under it. Such, we think, is the sensible rule, and the one supported by the authorities in this state (Wolfe v. Hoavcs, Whelan v. Ansonia Clock Co., and Niblo v. Binsse, supra); also, by the cases above cited from Massachusetts, Maryland and Wisconsin.

The defendant’s exceptions to the admission of the plaintiff’s books containing accounts kept by him Avith the “Gross Hotel,” the building in question, and with the defendant, are not well taken. These accounts contained in detail the items of materials and labor which the plaintiff furnished upon his contract, and also various cash items connected with the performance of the contract. These items were verified by the testimony of the plaintiff and Ms assistant. They were not admitted because the book contained them, but because shown by competent testimony to be true. The record shows that the referee carefully and properly examined them, and rejected such items as were not properly chargeable to the defendant, except the items amounting to $309.10, which we conclude to reject.

We think the judgment should be modified by deducting $309.10 and the interest thereon, and, as so modified, be affirmed, with costs.

All concur.


text:
    Stephen Cheney et al. v. New York Cent. & H. R R. Co. et al.

    (Supreme Court, Appellate Division, Fourth Department,
    July 30, 1896.)
    HienWAvs—Title to eee—Grant bt state.
    A grant by the state of land bordering on a highway presumptively con* veys title to the center of the highway.
    Appeal from special term, Onondaga county.
    Action by Stephen Cheney and others against the New York Central & Hudson River Railroad Company and another to restrain defendants from operating their railroad on Canal street, in the city of Syracuse, in front of premises owned by plaintiffs, and to compel the removal of rails therefrom, and to recover damages for past trespasses. There was a judgment in favor of plaintiffs, and defendants appeal.
    The opinion of Mr. Justice VAHN, at special term, is as follows:
    The principle upon which the court has based its judgment in this case is the same as was laid down in Mayock v. Rome, W. & O. R. Co., decided in March, 1893, and the features common to the two cases will not be reconsidered. The letters patent dated May 11, 1832, when considered in connection with the inapto which they refer, which has been sufficiently identified, establish a conveyance by the people to a remote grantor of the plaintiffs of a lot of land, in effect described as abutting upon a street, without any reservation or declaration of intention not to convey to the center of the street. As between individuals, such a conveyance is presumed to carry the title to the center of the street, subject to the right of way belonging to the general public. Bissell v. Railroad Co., 23 N. Y. 61; In re Ladue, 118 N. Y. 213, 23 N. E. 465. The same presumption extends to a grant from the state, and for the same reason, namely “because a narrow strip, such as half a street, is much more valuable to the grantee than to the grantor, and the parties are supposed to have so dealt with the property as to bring out its greatest value.” In re Ladue, 118 N. Y. 219, 23 N. E. 467. If the title to public highways was in the state, in its-corporate capacity, the presumption might be otherwise, but the state does not OAvn an ordinary highway. State OAv-nership would carry with it the burden qf expense for care, construction, and repairs that rests upon subordinate political divisions of the state, such as toAvns, cities, and villages. When a highway, no matter Iioav ancient, is abandoned, notice need not be given to the state; and it is safe to say that the state has never asserted title to any part of a abandoned highway. If the street in question should be abandoned, the land Avould not revert to the state, but to the-adjoining proprietors. The right of way over land constituting a street belongs to the people at large in their unorganized capacity, but the control of the same is vested by law in certain political agencies, such as those aboA7e named, and they are held responsible for the manner in which they discharge their duties. In no sense, however, does the state own the streets of a city, arid hence the distinction relied upon by the defendant between public and private grants does not apply to this case. The plaintiffs, in my opinion, OAvn to the center of the street, and are entitled to damages.
    The statute of limitations, pleaded by the defendants, aaTlo rely upon the 6/ 10, and 20 years’ provisions, respectively, applies only as to a continuous trespass. As was said in a late case: “No lapse of time or inaction merely on the part of an OAvner after the erection and during the maintenance-of the unlaA\Tful structure unless it has continued for such a period of time as will effect a change of title in the property, or authorize the presumption of a grant, is sufficient to ( defeat the right of the owner to his action at laAV or equity.”' Gaffay v. Railroad Co., 128 N. Y. 132, 40 St. Rep. 145.
    The conveyance to the plaintiffs Avas not champertous (American Bank-Note Co. v. New York El. R. Co., .129 N. Y. 252, 41 St. Rep. 531); and, although they purchased a number of years after the railroad Avas constructed in Canal street, still they are entitled to all damage on account of the maintenance and operation of the railroad that has accrued since their purchase, not exceeding six years before the commencement of the action. (Sterry v. Railroad Co., 129 N. Y„ 619, 41 St. Rep. 119.)
    The remaining question, relating to the damages, is not without embarrassment, OAving to the someAA’hat indefinite nature of the evidence upon the subject. The nearest approximation to justice that I can make is to place the past damages at $432.95, and the future damages at $750, the-benefits having been duly considered when and as permitted by the adjudged cases, Newman’s Case, 118 N. Y. 618 30 St. Eep. 36; Sutro’s Case, 137 N. Y. 592, 50 St. Eep. 701. The plaintiffs, therefore, are entitled to judgment' for said sum of $432.95, with costs; the, same to be collected in the usual way. They are also entitled to judgment restraining the defendants from operating their railroad on the land of the plaintiffs in Canal street, and commanding them to remove their tracks therefrom within 60 days after the entry and notice of judgment therein, unless within said period they shall pay to the plaintiffs the "further sum of $750, in full for the value of so much of plaintiff’s interest in said street as is necessary to maintain the tracks and structures now existing therein, and to store, use, and operate engines and cars thereon in the same manner as heretofore has been done. If such payment is made as is last above provided, the plaintiffs shall thereupon, at the request of the defendants, and at their expense, execute, acknowledge, and deliver to the defendants, or such one or more of them as their attorneys shall elect, a deed releasing their interest in the street accordingly. If either of the plaintiffs has a living-wife, and she refuses to unite with him in the release, one-third of his interest in said sum of $750 is to be paid into court, to await its further order.
    Findings and a decree may be prepared accordingly and settled, if not agreed upon as to form, on a notice of two days.
    Argued before HARDIN, P. J., and FOLLETT, ADAMS, WARD, and GREEN, JX
    Louis L. Waters, for appellants.
    E. C. Wright, for respondents,
   PER CURIAM.

Judgment affirmed, with costs, on the opinion of VANN, J., delivered at special term, and upon Wright v. Railroad Co., 92 Hun, 32, 36 N. Y. Supp. 901.


text:
    Prosper Shortsleeves v. New York Cent. & H. R. R. Co.
    (Supreme Court, Appellate Division,.Third Department,
    September 22, 1896.)
    Excessive Damages—Personal injuries.
    A verdict for §3,600 for injuries resulting in permanent lameness is excessive, where it appears that plaintiff continued in the employ of defendant, doing the same general kinds of work, for about a year after the accident, without seeking the advice of a physician, and that he can still do most kinds of work that he could do before the accident.
    Appeal from trial term.

      Action by Prosper Shortsleeves against the New York Central & Hudson River Railroad Company for personal injuries. There .was a judgment in favor of plaintiff, and defendant appeals. Affirmed on condition.
    R. A. Parmenter, for appellant.
    Parker & Piero (J. Newton Piero, of counsel), for respondent.
   PER CURIAM.

The plaintiff was injured July 5, 1889, by the wheel of the hand car upon which he was riding slipping off and causing the car to upset and precipitate him to the ground. And it is claimed that'the injury received at that time has resulted in the permanent lameness of one of his legs. The jury rendered a verdict of $3,500. The plaintiff went to work the next morning after the accident, and continued to work until November of that year, when he ceased working for the defendant. He resumed work again in April, 1890, and worked for the company until November of the year 1890. In November of 1889 or 1890, it is not clear which, he sustained another injury, which, however, he claims was to the other leg. It also appears that he had been slightly lame for a number of years prior to the happening of either accident. It does not appear in the case that he ever had the attendance of any physician for the injury complained of, or ever consulted one in reference thereto, until about six months before this action came to trial, a period of about six years after the happening of the accident.

There is, perhaps, sufficient evidence of negligence to warrant the jury in finding the defendant liable, and we would not, perhaps, be justified in setting aside the verdict because of the insufficiency of the evidence of negligence. No question of law is argued before us by the appellant as a reason for the reversal of the judgment, but the evidence as to the injuries to the plaintiff we do not think warrant the rendition of so large a verdict as was given in this case. Assuming that the accident complained of was of a permanent nature, it is not one that creates a total disability, but only a partial disability. It appears that he continued in the employment of the defendant, doing the same general kinds ■of work, for a considerable period after the accident, and that he did not consider his injuries of sufficient consequence to warrant him in seeking the advice of a physician, and, so far as we can determine from the evidence, he is fully as competent to perform most of the kinds of labor that he had been performing for the defendant, as he had been for some time before the happening of the accident complained of. Without discussing the evidence at any length, it seems to us that the verdict is excessive, and should be either reduced or set aside.

If the plaintiff, within 30 days after the service of a copy of the order herein directed upon him,-stipulates to reduce the judgment to the sum of $1,500, then the judgment appealed from is affirmed, without costs of this appeal to either party. If the plaintiff shall fail to so stipulate, then the judgment is reversed, and a new trial granted, costs to abide the event.


author: PARKER, P. J.

text:
    North British & Mercantile Ins. Co. of London & Edinburgh v. Central Vermont R. Co. et al.

    (Supreme Court, Appellate Division, Third Department,
    September 14, 1896.).
    1. Carriers—Bill of lading—Ratification of conditions.
    A shipper who orders the goods to be held in an elevator awaiting his order thereby ratifies the conditions of the bill of lading to which he did not have time to object before the vessel sailed.

      % Same—Limitation of action by stipulation.
    A provision in a bill of lading, that any action thereon must be brought within three months after the loss or damage occurs, is reasonable.

      8. Same—Subrogation of insurer to shipper’s rights.
    Where a bill of lading provides that the carrier shall have the benefit of any insurance by the shipper, the insurer can not, by subrogation to the rights of the shipper, assert any claim, against the carrier, for the loss of the goods by the carrier’s negligence.
    Appeal from judgment on report of referee.
    Action by the North British & Mercantile Insurance Company of London & Edinburgh against the Central Vermont Railroad Company, the Ogdensburgh & Lake Champlain Railroad Company, and the Ogdensburgh Terminal Company, to recover the amount of insurance which plaintiff paid for goods insured by it and lost while in transit by the negligence of defendants. The complaint was dismissed, with costs, and plaintiff appeals. Affirmed.
    Lawrence Russell, for appellant.
    Louis Hasbrouck, for respondent Central Vermont R. Co.
    Alric B. Herriman, for respondent Ogdensburg & L. C. R. Co.
    Charles G. Idler, for respondent Ogdensburg Terminal Co.
   PARKER, P. J.

The grain, for the loss of which this action is brought, except 10,120 bushels of corn belonging to Harvey & Co., and' which was shipped under a Montreal bill of lading, and also except so much as is known as the “Hurl-but Grain,” was in possession of the defendants, as common carriers, under bills of lading containing provisions which exempted them from damages for loss occasioned by fire unless caused by the negligence of such defendants or their servants. It is claimed that, as to a certain lot of the grain shipped by Peavey & Co., in the schooner Hecla, the bill of lading was delivered to them under such circumstances that they were not bound by the conditions in it limiting the common-law liability of the defendants, and that hence, for the loss of that grain, no negligence need be proven. If it be conceded that Peavey & Co. had no knowledge of the terms and conditions in the bills of laving under which it was the custom of these defendants to carry grain, and that they did not receive it until after the vessel had sailed, and it was too late, then, to object to such conditions, nevertheless, Chandler had long dealt with them, and had knowledge of all the limitations and conditions under which they received and carried freight, and of their methods of transporting the same from Chicago east. Chandler purchased the whole 50,000 bushels shipped by Peavey & Co. in the Hecla, and took an assignment of such bill of lading. Twenty-one thousand bushels of that amount were carried through by the defendants to Boston, under such bill of lading, and delivered to him. The other 29,000 bushels were, by Chandler’s express directions, held in the elevator at Ogdensburg awaiting his order. Such order, given after he had received the bill of lading and was aware of its contents, was, I think, a ratification of all the terms thereof by him. From that time on it was, as between Chandler and the defendants, a valid contract, and as against him the defendants may avail themselves of all the conditions therein contained. As to , all the other bills of lading, they were received by shippers who had long dealt with defendants, and who were knowing to their contents; and I have no doubt that they were valid and existing contracts, as between them and the defendants. As to the Hurlbut grain, it was held by the defendants as warehousemen.

The referee has found that the fire was not caused by the negligence of the defendants. After a careful examination of the evidence, I am of the opinion that such conclusion is correct, and should not be disturbed by this court. This finding, in itself, would be a complete defense to the plaintiff’s claim for all but the 10,120 bushels of corn, were it not for the fact that, prior to the fire, Chandler had ordered out of the elevator, and directed’ to be forwarded, some 38,400 bushels of grain belonging to him, and that the defendants had negligently omitted to send it forward. Such amount of grain was of the value of $18,244.50, and owing to such neglect, it was all consumed by the fire, and Chandler thereby suffered damage to that amount. It is for the loss occasioned by the destruction of this grain, and for the 10,120 bushels of corn, only, that any action can be sustained; and as to this the question is whether the bills of lading under which it was held by defendants at the time of the fire contained in them any conditions which operate as a defense to the plaintiff’s claim. Although the grain was in the elevator at Ogdensburg, it must, I think, under the circumstances and method by which the business was done, as described in the referee’s report, be deemed still “in transitu,” and the bills of lading to still furnish the measure of the defendants’ liability. It was still in their possession as common carriers, and not as warehousemen.

One of the conditions of the Boston bills of lading, so called, was to the effect that the defendants should not be liable for any loss sustained “ unless written claim for loss or damage shall be made to the person or party sought to be made liable within thirty days, and the action in which such claim is sought to be enforced shall be brought within three months after the said loss or damage occurs.” It appears by the tenth finding of fact that all of Chandler’s grain destroyed was received in the elevator under Boston bils of lading, except 4,000 bushels which were received under a Montreal bill of lading. But on August 9, 1890, when such 4,000 bushels were sold to Chandler by the original shipper from Chicago, Harvey & Co., he (Chandler) ordered out of the elevator that 4,000 bushels, and anew Boston bill of lading was on that day issued to him for the same; and such 4,000 bushels were a part of that which was negligently delayed, and therefore lost. Hence it appears that, at the time of the fire, all the grain so ordered forward was in the possession of the defendants under Boston bills of lading, containing the contract above specified. This action for the loss of this grain was not commenced until September 3, 1893, nearly three years after the fire, which occurred September 9, 1890. This delay in bringing suit seems to be fatal to the plaintiff’s right to recover for such grain in this action. That such a limitation is a reasonable one is held in Railroad Co. v. Soper, 8 C. C. A. 341, 59 Fed. 879, with reference to this very fire, and to bills of lading precisely like the ones before us; and with this conclusion I concur. A conimon carrier may lawfully make such a .contract limiting the right of action against it if the time specified is a reasonable one. Jennings v. Railroad Co., 127 N. Y. 438, 451, 40 St. Rep. 318. See, also, Ripley v. Insurance Co., 30 N Y. 136; Soacli v. Insurance Co., id. 546; Mayor v. Insurance Co., 39 id. 45. The plaintiff's cause of action for the grain so ordered forward is derived from Chandler by subrogation or assignment, and, of course, the rights so acquired are subject to any defense that existed against him. For this reason, therefore, it would seem that no action can be maintained by the plaintiff for the loss of the grain so ordered forward and lost to Chandler by the negligent delay of the defendants.

As to the 10,120 bushels of corn owned by Harvey & Co., inasmuch as the bill of lading under which it was shipped did not limit the common-law liability of defendants for its loss by fire, no negligence was necessary to be proved against them in order to recover for such loss. But there was a provision in such bill of lading to the effect that, in case of loss or damage of any of the goods named in it, for which any carrier under the same would be liable, they should have have the benefit of any insurance by or for account of the owner of such goods. This plaintiff claims to recover for the loss of such corn because, having insured Harvey & Co. for its loss, it has been subrogated to their claim against the defendants for the loss, and, having paid Harvey & Co. the amount so insured, they have received from them such an assignment of their claim. But, by reason of the contract in the bill of lading, the insurance so made to Harvey & Co. was for the benefit of these defendants, and under such circumstances no cause of action accrues by subrogation, or can be assigned, to the insurer, against the common carrier. That rule is clearly held in the following cases: Platt v. Railroad Co., 108 N. Y. 358, 13 St. Rep. 660; Fayerweather v. Insurance Co., 118 N. Y. 324, 23 N. E. 192; Phoenix Ins. Co. v. Erie & W. Transp. Co. 117 U. S. 312, 6 Sup. Ct. 750, 1176; Liverpool & G. W. Steam Co. v. Phoenix Ins. Co., 129 U. S. 397, 9 Sup. Ct. 469. Hence the plaintiff has not established a cause of action for the loss of the corn in question.

So, also, the so-called Boston bills of lading, under Avhich all the rest of the grain in this case, except the Hurlburt grain, Avas shipped, contained a similar provision; and, inasmuch as the plaintiff's claim to recover for such grain is based solely upon a similar subrogation and assignment from the OAvners, Chandler and Harvey & Co., another reason is apparent why it cannot recover therefor.

I do not find any error in the rulings upon the trial that warrants a reversal of the judgment, and am therefore of the opinion that the judgment should be affirmed.

Judgment affirmed, Avith costs.

All concur.


author: BISCHOFF, J.

text:
    Frederick Schuster v. August Ganzenmuller.
    (Supreme Court, Appellate Term, First Department,
    September 28, 1896.)
    1. Appeal—Review—Weight of evidence.
    Tlip appellate term of the supreme court can not, on appeal from am affirmance by the general term of the New York city court, consider the-weight of evidence.
    2. Witness—Impeachment.
    In an action far commissions on a sale of real estate the purchaser’s-agent in the transaction may, on cross-examination, be asked, for the pur= pose of proving that lie made statements out of court contradictory to his te-timony, whether he remembered having been questioned at the time he made the contract of purchase, as to his authority, and whether or not> there was a broker in the sale.
    Appeal from city court of New York, general term.
    Action by Frederick Schuster against August Ganzenmuller for broker’s commissions. A judgment in favor of plaintiff was affirmed by the city court (40 N. Y, Supp. 1123),, and defendant appeals.
    John Fennel, for appellant.
    L. J. Morrison, for respondent.
   BISCHOFF, J.

This is an action for broker’s commissions, claimed upon a sale of real estate owned by the defendant, and the sole issue litigated at the trial was whether or not the plaintiff Avas the procuring cause of the sale, it having been admitted that, should he establish this fact, a recovery should result. There Avas evidence in support of the conclusion reached by the jury that the plaintiff was the procuring cause; therefore the court properly refused to dismiss the complaint, and, since, the judgment was affirmed by the general term, we must uoav hold the case to have been correctly determined upon the facts. Carney v. Reily (handed down herewith) 40 N. Y. Supp. 1123.

HoAvever, while the exceptions taken to rulings upon evidence and upon requests to charge are in most instances found to be without merit, one appears which Ave think must call for a new trial. This exception was taken to the exclusion of a question asked the plaintiff’s witness Volkenning (the purchaser’s agent through Avhom the transaction Avas conducted Avith the defendant) on cross-examination, as folloAvsr “Q. Bo you remember, at the time you made the contract for this property, two question were asked of you, one relating to your poAver to sign for your Avife, and the other question relating to whether or not there Avas a broker in the sale?” It is claimed that the object of this question was to prove a statement made out of court by the witness contrary to his own testimony, in so far as such testimony tended to show that the sale was induced by the plaintiff’s •efforts; and we think that it should have been allowed. The question was not misleading in its form, and the appellant was entitled to bring out the fact from this witness, if he could, that the latter had made a statement out of court in contradiction of his testimony at the trial; or, if the witness denied making the statement, to thus lay the foundation for his impeachment by other witnesses upon the point. The issue with regard to which this statement was claimed to have been made was certainly material. It was the sole issue before the court, and the testimony of this witness, Yollcenning in favor of the plaintiff, was the principal evidence in support of the case. We conclude that the ruling was clearly to the prejudice of the appellant, and that there should be a new trial of the cause.

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

All concur.


text:
    Annie L. Corcoran v. Ulster & Del. R. Co.
    (Supreme Court, Appellate Division, Third Department,
    September 29, 1896.)
    Excessive damages—Personal injuries.
    A verdict for one $1,000 for personal injuries is excessive where the only evidence as to the extent of the injuries was that of plaintiff, who stated that her ankle was sprained, in consequence of which she was prevented for five or six weeks from following her occupation of dressmaker ; that she consulted a physician, and paid out between $5 and $10 for medicines; that she was rendered extremely nervous; and that her ankle at the time of the trial, three years after the accident, still troubled her.
    Appeal from circuit court, Ulster county.
    Action by Annie L. Corcoran against the Ulster & Delaware Railroad Company for personal injuries. A verdict for §1,000 was rendered in favor of plaintiff, and from the judgment entered thereon, and from an order denying a motion for a new trial, defendant appeals.
    While plaintiff was crossing defendant’s tracks in a wagon driven by another, an engine standing near the crossing began to move, and came in contact with the wagon. Plaintiff jumped from the wagon, and sprained her ankle. The accident occurred September 7, 1892, and the action ivas tried June 13, 1895. Plaintiff testified as to the injuries sustained by her, as follows: “I was terribly frightened and nervous, and I knew that, and I injured my anide. I feel the effects of the injury to my ankle yet. I consul ted a physician. He put me in the wagon, and wanted to drive the horse. I ivas frig'll tened, and did not want to go into the wagon, -s «- * f must have been prevented from business for five or six weeks. I remember perfectly in October, the week beginning the 12th, I was trying to walk; got out at the time to stand on it. That was about the first time. That was the week beginning October 12th. That was the first I began to walk on my foot with any degree of comfort. I have been lame since Sunday. I have to go to the druggist’s quite frequently. Easter week I was in the house a week •with that same ankle. I was never troubled with it before this accident. I have felt, besides my ankle, nervousness,— ex-treme nervousness—particularly while riding. * * * I paid out for medicines and liniment to apply on the leg between five and ten dollars, I would suppose. I feel the effects yet. I have been real lame since Sunday, because I am not accustomed to walking. When I walk any distance 1 feel it. I cannot walk with the same degree of freeness as I did before this thing occurred.”
    H. C. Soop (A. T. Clearwater, of counsel), for appellant.
    Brinnier & Newcomb, for respondent.
   PER CURIAM.

There was, perhaps, sufficient evidence, though slight, upon the question of negligence on the part of the defendant, and the lack of contributory negligence on the part of the plaintiff, to warrant the submission of those questions to the jury. Wa are not however, satisfied that the evidence shows any such injury to the plaintiff as warranted the jury in awarding her the sum of $1,000 as compensation therefor. We do not feel disposed to enier upon the discussion of the evidence in relation to her injuries, and the loss occasioned to her thereby. It would, perhaps, be hardly fair to the plain!iff to do so in the event of there being a new trial. We think the verdict should be set. aside as excessive and a new trial granted, unless the plaintiff, within 30 days after service of a copy of the order embodying this decision stipulates to reduce the amount of the damages to the sum of $,100, in which event the judgment, as so modified, should be affirmed, without costs of this appeal • to either party.


author: PER CTJRTAM.

text:
    Frederick W. Lang v. Joseph Wiesner.
    (Supreme Court, Appellate Division, Fourth Department,
    July 30, 1896.)
    Judgment—Opening default.
    A judgment against plaintiff by default, after denial of a motion to postpone, will not be opened where plaintiff had been frequently told that defendant would insist on trying the case, and he knew, three days before it was reached for trial, that it would be likely to be reached, and that he would be obliged to try it, but he made no effort to get his witnesses, though all but one lived in the city where the case was to be tried, and that one lived within three hours' ride, and the only reason given for the motion to postpone was that he wanted to move for leave to serve a supplemental complaint.
    Appeal from special term, Monroe county.
    Action by Frederick W. Lang against Joseph Wiesner for slander. The action was commenced by the service of summons and complaint on January 28, 1893. On April 26tli following, plaintiff served an amended complaint, and on June 2d a second amended complaint. Issue was joined on June 26,- 1893. The case was called for trial December 14, 1891, and plaintiff aslced that the cause be postponed. The motion was refused, and defendant’s motion that the complaint be dismissed was granted. On March 16, 1895, plaintiff moved for an order directing that the default be opened, and that the judgment be set aside, and a trial directed. The motion was denied, and plaintiff appeals.
    The opinion of Mr. Justice RTTMSEY at special term is as follows:
    1 can see no reason for opera ng this default. The plaintiff’s attorney evidently did not intend to try this case at the circuit, although he was advised time and again tiiat the defendant would insist on trying it. He knew on December 11th, that the case would be likely to be reached, and that he would be obliged to try it; but he made no effort to get his witnesses, although all but one of them lived in Rochester, and tiiat one lived less than three hours’ ride from there. There was no claim made at the circuit, where the motion was made to put the ease over, that plaintiff' htid tried to procure his witnesses, but the only excuse given was that he wanted to move for leave to serve a supplemental complaint. He has been guilty of laches even in that motion, so upon the whole I am clear that to open this default would operate to reward gross laches and punish diligence of the defendant in preparing for trial. Motion denied, with $10 costs.
    Charles Roe, for appellant.
    Werner & Harris, for respondent.
   PER CTJRTAM.

Order affirmed, with $10 costs and disbursements, on the opinion of RUMSEY, J., delivered at special term.

All concur.


author: B1SCHOFF, J.

text:
    William Fernschild v. D. G. Yuengling Brewing Co.
    (Supreme Court, Appellate Term, First Department,
    September 28, 1896.)
    A new corporation was formed as a reorganization of another, under an agreement for the transfer to it of the property of the old company in consideration of the assumption of the old company’s debts, except the claims of nonassenting bondholders. A resolution was adopted authorizing the purchase, and a bill of sale was prepared, providing that the new company should assume ail the debts of the old company, except certain bonds. The reorganization committee reported that they had procured a bill of sale of all the property, which was to be delivered on “the assumption by the new company of all said debts and obligations.” The chairman of the committee stated that the old company transferred till its property in consideration that the new company should assume all the debts and obligations of the old company, in addition to those specified in the organization agreement. Thereupon a resolution was adopted tt'at the new company assumed “all the debts, obligations, and liabilities, of every kind and description, of [the old company], in addition to the bonds and other obligations mentioned in the agreement of reorganization.” Meld, that the obligation of the new company was to assume all the obligations of the old company, including its bonds. 38 N. Y. Supp. 110. reversed.
    Appeal from city court, of New York, general term.
    Action by William Fernchild against the D. G. Yuengling Brewing Company to recover a debt alleged to be due plain - tilf from D. G. Yuengling, Jr., Brewing Company. A judgment in favor of defendant was affirmed by the city court (38 N. Y. Supp. 119), and plaintiff appeals. Reversed.
    Argued before DALY,P. J., and McADAM and BISCITOFF, JJ.
    Forster, Hotaling & Lenke, for appellant.
    Samuel Unlermyer and Moses Weinman, for respondent.
   B1SCHOFF, J.

This action was brought by the plaintiff to recover the amount of an indebtedness due him from the D. G. Yuengling, Jr., Brewing Company, payment of which he claimed to have been assumed by the defendant under an agreement with the first-named corporation. At the triai a verdict was rendered in favor of the defendant, and this appeal is taken from an affirmance by the general term below of the judgment thereupon entered. The indebtedness in question was the plaintiff's share in the deficiency remaining after foreclosure of a second mortgage upon the real estate and certain other property of the D. G-. Yuengling, Jr., Brewing Company, made as security for an issue of bonds, two of which w'ere held by the plaintiff. A reorganization of this company, which was in an insolvent condition had been effected. A large majority of the bondholders had surrendered their bonds, under acceptable conditions, and the property foreclosed upon was purchased at the sale for the new corporation then al out to be formed,—this defendant. Besides the mortgaged, property, the old corporation had valuable stock in trade, machinery, and other property employed in conducting its business, also assets in the form of book accounts, all of which were transferred by that company to this defendant, for a nominal consideration, by a bill of sale, the terms of which instrument, together with certain proceedings taken by the defendant at a meeting of its directors at the time of the delivery of the papers furnish the matter for contention in this litigation. The proof consists of the minutes of the defendant’s meeting, which minutes embody the report of a committee on reorganization, and resolution adopted, together with an abstract from the reorganization agreement; also the bill of sale itself. This evidence was all received in behalf of the defendant, the plaintiff merely having placed in evidence a certain mortgage, wherein the resolution in question was set forth; and there is no dispute that the proceedings had were binding upon the defendant, and properly set forth in the proofs. The only portion of the reorganization agreement which will be seen to be material is that part which gives the committee discretionary power to apply certain unallotted bonds in satisfaction of the claim of those bondholders of the old company who did not assent to the reorganization, of whom the plaintiff was one. The pleadings admit, as to this, that this agreement did not provide for the assumption by the defendant of the plaintiff’s claim.

We now proceed to consider the evidence in the ease upon which a construction of the agreement between the original company and this defendant, touching the assumption of the former company’s debts may be arrived at:

On the 27th day of December, 1893, a regular meeting of the defendant’s directors was held and the report of the reorganization committee was read and adopted. This report set forth the purchase of the property of the old company, and the mortgage sale by Samuel TJntermyer, who was at that time ready to convey the said property to the defendant corporation; that the—

“Said Samuel TJntermyer did not, by virtue of the foreclosure and sale, acquire title to certain book accounts, stock in trade, and other assets of the said D. Gr. Yuengling, Jr., Brewing Company,, which are still in possession of the old corporation; that schedules of said book accounts, stock in trade, and other assets, and of the debts and obligations to be assumed by the new company, are hereto attached, and marked ‘B’ and ‘O’ respectively, and are hereby embodied in this report as a part thereof.”

Schedule C, above referred to, did not include the bonds of the old company in the enumeration of debts to be assumed by the new, and in this regard the schedule agreed with the terms of the bill of sale actually delivered by the old company of its unmortgaged assets. As material to this question of assumption, the bill of sale was framed in the following language:

“And the party of the second part doth hereby convenant. and agree that, in consideration of said transfer as aforesaid it will assume, and doth assume, the payment of all the debts and obligations of the party of the first part, excepting the mortgage bonds of said party of the first part, and excepting all other indebtedness otherwise provided for in a certain plan or agreement of reorganization of the said party of the first part, pursuant to the terms of which the party of the second part ivas organized.”

So far there is seen to be no incompatibility between the reorganization agreement, the report of the committee, and the bill of sale, which last instrument was already prepared at the time of the meeting: and throughout the proceedings, up to this time, it is clear that the defendant’s intention Avas to refuse an assumption of the indebtedness due bondholders who had not assented to the reorganization plan. In the nature of such a plan, the old bondholders would not have been offered greater advantages, though withholding their consent to its terms, than could be acquired by their acceding to them, and a full assumption of the accrued indebtedness upon the old bonds by the reorganized company would probably have effected this result. The above considerations would apply to the original plan of reorganization of an insolvent company, looking to the acquirement of its property, when that property Avas completely applicable as security for an indebtedness which the plan itself would seek to have canceled in exchange for advantage offered under the reorganization. But at the time of the meeting which we are noAV considering this defendant Avas seeking to obtain further assets, of large value, from the old company, for a nominal consideration; and, to that end, it would not be remarkable if it found itself in a position where an as sumption of the claims of the nonassenting bondholders would be expedient, if insisted upon by the prospective transferror, the old corporation, as a condition to the transfer. It is to be noted that the non assenting bonds represented but a comparatively small amount, the greater number having been already surrendered to the defendant; and it would appear that the ar-sets transferred were actually subject to a lien for the deficiency upon foreclosure in favor of the plaintiff and his companion bondholders, should such parlies see fit to enforce their claims. Moreover, it is certainly conceivable that the directors of the old corporation should insist upon an assumption by the transferee of all claims existing upon the assets to be transferred, as a measure of precaution against some very possible embarrassment.

We are now prepared to examine the further proceedings, as noted in the minutes of the defendant’s meeting. The report of the committee proceeds:

1 ‘1 hat this committee has therefore procured the execution by the D. G. Yuengling, Jr., Brewing Company of a bill of sale transferring the said book accounts, chattels, stock in trade, and all other property of the old company, of every kind and description, not included in the purchase of said Samuel Untermyer, to the end that the D. G. Yuengling Brewing Company shall be vested with all the property, rights, franchises, privileges, and good will of the D. G. Yuengling, Jr., Brewing Company, and assumes all its debts and obligations, so that the former company shall in all respects stand in the place of, and be the successor to, and as far as may be the same corporate body as, the last mentioned company. The said bill of sale will be delivered only upon the assumption by the new company of all said debts and obligations.”

Following this we have a statement by the chairman leading to the resolution of the corporation assuming the debts of the old company, as below:

“The chairman states that the D. G. Yuengling, Jr., Brewing Company is in possession of various books accounts, stock in trade, chattels, and chattel interests, which have not been included in the property transferred to Samuel Untermyer by means of the sale foreclosing the mortgage to the Farmers’ Loan and Trust Company, held by that company, to secure its bondholders, but that said D. G. Yuengling, Jr., Brewing Company has, at the instance of the reorganization committee, and pursuant to resolution of its board of directors, and with the consent of its stockholders, transferred all such chattels to this company, by means of a bill of sale, all subject to the acceptance and approval thereof by this board. In return of said transfer, this said company is to assume all the debts and obligations of the D. G. Yuengling, Jr., Brewing Company, in addition to those specified in the agreement of reorganization.

“On motion of Mr. Yuengling seconded by Mr. Steers, it was unanimously resolved that this company assume all 11 e debts, obligations, and liabilities, of every kind and description, of the D. Gr. Yuengling, Jr., Brewing Company, in addition to the bonds and other obligations mentioned in tl e agreement of reorganization, and thereby provided to be assumed by this company, and that in return for, and as a consideration of, the assumption of said debts, obligations, and liabilities, this company accept from said B. G-. Yuengling, Jr., Brewing Company the bill of sale presented by the chairman, transferring unto this company all the peisonal property, effects, and chattels of every kind, including the stock in trade, book accounts, and good will, of said D. Gr. Yuengling Jr., Brewing Company, not included in the property covered by the trust mortgage given by said company to the Farmers’ Loan and Trust Company to secure bondholders, and not heretofore acquired by this company; the intent hereof being to vest in this company all property, right, franchise, privileges, and good will of the old company, so that this company shall in all respects stand in the place, and be the. successor of, and, so far as may be, the same corporate body as, the said D. Gr. Yuengling, Jr., Brewing Company aforesaid.”

In our view, it is clear that the defendant intended to bind itsMf for the payment of the indebtedness upon these outstanding bonds, such being the condition upon which a transfer of the assets in question was finally made. The final resolution is unmistakable in its terms, and, from the proceedings leading up to that resolution, we find the explanation of the inconsistency appearing in the form of the bill of sale. That instrument alone did not express the contract be tween these two corporations under which the transfer of these unmortgaged assets was made, although from such paper, and the schedule annexed to the committee’s report, it is, of course, apparent that the defendant’s desire had originally been to avoid the assumption of the plaintiff’s claim. The bill of sale, as executed by the old corporation, passed tille to the assets. described only when delivered and accepted. It was not executed by the defendant, and the recital of the latter’s obligations thereunder, while it would have been evidence of its intentions when accepting the transfer, without more, was not in contradiction of the facts actually attending that delivery and acceptance, a greater obligation having been assumed as a condition to the passing of title. Had the transferror been content with the condition of delivery as set forth in the bill of sale, there had been no call for the passage of this resolution; but this further condition wís hwisled upon, was complied with, and the transaction was concluded agreeably to the form of the contract thus made. Tne bill of sale was before the defendant, delivery being postponed to its taking the action called for, and, in taking that action we may only presume that it was aware of its effect. The judgment below proceeded apparently upon the assumption that the bill of sale was executed and delivered after all the proceedings noted had been had, and that it was drawn up as an embodiment of the agreement finally reached. The undisputed facts, and the only reasonable inference to be deduced therefrom, are otherwise; and the competency of the evidence in support of those facts not only was in no way challenged, but was in effect conceded.. It is not posssble to uphold the judgment upon the provisions of section 1628 of the Code of Civil Procedure, as urged by the respondent. While that section prohibits the maintenance of an action to recover the mortgage debt, or a part thereof, after foreclosure, without leave of court, it is held to apply only to an action based upon the original obligation. Here the action is upon a new agreement made after foreclosure, and as such was maintainable without leave having been fiist obtained. Schultz v. Mead (Sup.) 8 N. Y. Supp. 663, affirmed 128 N. Y. 680, 29 N. E. 149.

The judgments of the general and trial terms below must be reversed, and since the action proceeds merely upon the legal effect of undisputed facts, judgment for the plaintiff is directed in the amount claimed, with costs. See cases cited in Riley v. Black, 1 Misc. Rep. 288, 292, 20 N. Y. Supp. 695.

All concur.


author: BTSCHOFF, J.

text:
    Michael Carney v. Maggie Reilly.
    (Supreme Court, Appellate Term, First Department,
    September 28, 1896.)
    1. Appeal—Weight oe evidence.
    Tlie appellate term of the supreme court, on appeal from the general-term of the New York city court, can not consider the weight of evidence.
    2. Trial—Reception oe evidence—Discretion oe court.
    Where a paper had been twice called for during the trial, and counsel for the adverse party stated that he did not have it, but afterwards offered it in evidence without explaining its sudden appearance, it is within the discretion of the court to refuse its admission.
    8. Costs—Extra allowance—Appeal.
    The general term of the New York city court exercises final discretion-on an application for an extra allowance, audits decision is not reviewable by the appellate term.
    Appeal from city court of New York, general term.
    .Action by Michael Carney against Maggie Reilly to foreclose a mechanic’s lien. A judgment in favor of plaintiff,. rendered at trial term without a jury, was affirmed by the city court, and defendant appeals.
    Malcolm R. Lawrence, for appellant.
    Albert Sire for respondent.
   BTSCHOFF, J.

—The plaintiff, a subcontractor, Drought this action to foreclose a mechanic’s lien against the premises No. 40 Market street, owned by the appellant, for lathing and plastering work done under a contract with the principal contractor; his right to a lien depending upon the existence of an indebtedness due the contractor from the owner, to which his claim could attach. The owner appeals from the judgment in favor of the plaintiff, contesting the alloAvance of items for extra work alleged to have been performed by the contractor, and contending that her counterclaim or set-off, based upon an alleged breach of contract by by the contractor, AAras improperly rejected.

At the outset Ave find ourselves called upon to direct attention to the well-settled rule that, upon appeals from the general term of the city court to this court, the Aveight of the evidence is not open to revieAV, and that the judgment of affirmance below precludes our examining into the facts for any purpose other than to ascertain whether any evidence exists in support of a particular finding assailed. Gleason v. Thom, 16 Misc. Rep. 29,37 N. Y. Supp. 680; Davidoff v. Manufacturing Co., 16 Misc. Rep. 31, 37 N. Y. Supp. 661; Kreizer v. Allaire, 16 Misc. Rep. 6, 37 N. Y. Supp. 687. Therefore • the points made by the appellant’s counsel, touching the probabilities, the interest of the witnesses in the result of the action, and the presence or absence of corroboration, bring no matter before us for the inquiry. These questions were all resolved by the general term, and properly, so far as Ave may say, if some proof in support of the judgment appears.

The most important finding of facts is that dealing Avith the question of the contractor’s performance of the contract, upon which question depends the appellant’s right to a counterclaim or set-off against the sums claimed to be due and applicable to the satisfaction of the plaintiff’s lien. By the terms of the contract the building in question was to have been completed on November 1, 1893. It was not then completed, and on January 12, 1894, the contractor was expelled from the premises by the appellant, who thereafter completed the work. The reasonable expense of this completion was alloAved the appellant by the trial court, but the claim for loss of rents and other items, based upon the ■ contractor’s failure to complete on November 1st, was disallowed, upon the ground that the contractor had been delayed in his work by causes beyond his control for a period sufficient to excuse his nonperformance of the contract according to its exact terms. Sufficient evidence appears from the record that the contractor was delayed for a period of some 14 weeks in all by other contractors engaged upon the building, whose work had to precede his, by the acts of the building department, and through the fault of the owner in failing to maintain the premises in a condition to receive the plastering, in accordance with a trade custom. From this the trial court was authorized to find that the contractor’s failure to complete the building at the date named in the contract was excusable, and, since he AAras expelled from the building some 10 weeks thereafter, when excusable 14 weeks behind-hand, he AAras not in fault in that the work AAras not completed at the time of his expulsion; nor could it be said that he would not have performed his contract if given the full time in Avhich to make up for the period during which he was delayed.

The next question arises with regard to the contractor’s claim for extra work upon a party wall, cellar vaults, and sideAvalk, and against the allowance of this claim the appellant cites a clause in the contract which provides as folhrws:

“Should any dispute arise respecting the true construction or meaning of the drawings or specifications the same shall be decided by the said Frederick Tenth, architect, and his decision shall be final and conclusive; but should any dis- . pute arise respecting the true Aralue of the extra Avork, or of the Avork omitted, the same shall be valued by íavo competent persons,—one employed by the owner, and the other by the contractor, —and these íavo shall have poAver to name an umpire, whose decision shall be binding on all parties.”

No arbitration as to the value of this Avork Avas sought prior to the action, and the evidence supports the Aralue found by the court. The architect at no time decided whether the work upon the party wall was extra or not, but, according to the contractor’s testimony, the OAvner agreed with him that the work was extra, or, at least, did not dispute his statement that it must be so regarded if to be performed at all; and while the architect testifies that he had held the work upon the vault and sideAATalk to be Avithin the specifications, the testimony of the contractor to the effect that it had not been so held is found in support of the judgment. The plans and specifications were so draAvn as to make it very doubtful that this particular work on the sideAvalk was intended to be Avithin the contract, and the Avork in question upon the vault Avas not within the specifications, except by the terms of a marginal note upon that paper. As to whether this marginal note evidenced a part of the contract, or was added without the consent of the contractor, there is a conflict of testimony, and the fact was found favorably to the plaintiff upon Avliat we must assume the court found to be satisfactory evidence.

A further claim is made that the court should have allowed the appellant larger sums in some instances than were actually found to her credit, for expenses undergone in completing the building; but, while it is true that, under the evidence, a larger allowance as to certain of these items might Avith propriety have been made, it is equally true that upon the proof the justice might have found, in some instances, a smaller amount to be due the appellant. Therefore Ave cannot say that there was error of law in that the court did not alloAv the claims according solely to the evidence given in their support. This question was one for the tribunal having jurisdiction to review the facts.

No question arises upon this appeal with regard to the justice of the plaintiff’s claim against the contractor, through whom he seeks to recover; and, since the indebtedness due the latter from the owner appellant, as found upon sufficient evidence, is adequate to cover the plaintiff’s claim in its order of priority as a lien, the judgment is not, to this extent, to be disturbed.

We find hoAvever, that there was an erroneous allowance of a personal claim, made at the trial by the plaintiff against this appellant, for $32, evidence as to which AAras received under proper objection and exception. This demand was was not Avithin the pleadings, and hence not properly before the court for adjudication. The judgment, if to be upheld, must be reduced so far.

The exception taken to the admission of the evidence above noted is the only one which upon examination is found to present any ground for disturbing the judgment as rendered. The majority of those urged upon this appeal have to do Avith the exclusion of certain evidence of pecuniary loss, in support of the appellant’s set-off for the amount of damages sustained by reason of the contractor’s alleged breach of contract in failing to complete the building. Apart from any discussion upon the merits of the rejection of this particular evidence, it is clear that the rulings Avere harmless, in view of the main finding in favor of the contractor upon the question of this breach of contract. In the case of other exceptions, no ground of objection was stated, and the error of the rulings is not apparent.

One further exception was taken to the court’s exclusion of a certain paper Avhen offered upon rebuttal in behalf of the appellant. This paper had been tAvice called for at a previous stage of the trial, and counsel then announced that he did not have it. No sufficient explanation of its sudden appearance at the time of the offer was given, and we think that it was clearly within the proper discretion of the court to refuse its admission at that time.

There is also before us an appeal by the plaintiff from so much of the judgment of affirmance as reduces an extra allowance granted by the trial court from $290.42 to $21.50. This allowance, as granted, was computed at the rate of 5 per cent, upon the whole amount involved in the litigation, and the general term reduced it to the sum computed upon the plaintiff’s actual recovery $430.47. As of right the plaintiff was entitled to no allowance, the award being wholly within the discretion of the court to make or withhold, and the final exercise of discretion rested with the general term, from whose determination, within the limits of the discretion to be exercised, no further appeal lies. Gorham v. Innes, 115 N. Y. 87, 23 St. Rep. 615; Hanover Fire Ins. Co. v. Germania Fire Ins. Co., 138 N. Y. 252, 52 St. Rep. 334.

For the error noted in the allowance of the item of $32, the judgment must be reversed and a new trial ordered, with costs to abide the event, unless the respondent shall stipulate to reduce the recovery by that amount, in which event the judgment, as so modified, is to be affirmed, without costs.

All concur.