text:
    Anna E. Swinarton, Resp’t, v. George Le Boutillier, App’lt.

      (New York Common Pleas, General Term,

      Filed April 2, 1894.)

    1. Negligence—Invitation.
    The presence of a mischievous human being on premises, may constitute the danger against which the law requires of the occupant reasonable care to protect his invitee.
    2. Same—Merchant.
    For the breach of duty in exercising reasonable care to secure a customer against injury from the misconduct of his employees, a merchant is liable in an action by such customer.
    In an action for a personal injury, the plaintiff had a verdict for $10,000. A motion on the minutes for a new trial being denied, judgment was entered; and the appeal is from the judgment and the order denying a new trial. While a customer in defendant’s dry-goods store, plaintiff’s eye was put out by a pin snapped or shot by a cash-boy. Other facts appear in the opinion.

      J. Delahunty, for app’lt; Hatch & Wickes, for resp’t.
   Pryor, J.

The ground of an action for negligence is the breach of a duty owing by the defendant to the plaintiff. To sustain such action it is incumbent on the plaintiff to show the duty and to prove its breach, with a consequent injury to himself. In the present case, that the plaintiff has suffered injury from the act of which she complains, and that the damages awarded are not an excessive reparation for the wrong, if such there be, are not the subject of controversy. The contention is ever the two other elements of actionable negligence; the duty and its breach.

These essential facts plaintiff must established, not by a scintilla of evidence merely, but by proof reasonably sufficient to uphold a verdict in his favor. Upon a critical review of the evidence, our conviction is, that it suffices to support the facts from which plaintiff deduces the duty and the breach ; and hence, the question for adjudication is: Do those facts show a case of actionable negligence? In other words, can it be affirmed of the facts, as a legal conclusion, that they involve a violation of duty to the plaintiff? It is conceded that, at the time of her injury, the plaintiff was on the defendant’s premises by his invitation and for his advantage ; and that she suffered the hurt by effect of a mischievous agency operating on those premises, of which she was without notice. But this is not enough. To complete a case of actionable negligence, on the theory under consideration, the plaintiff must go farther, and show the defendant responsible for the harmful agency, by proof that it exists in consequence of his want of care. Imposing authority might be adduced for the proposition, that the duty of defendant was more absolute, that is, not to permit the hurtful agency on his premises; Beck v. Carter, 68 N. Y. 283, 292, and citations; but we prefer to limit his liability to the absence of proper diligence in the protection of the plaintiff. Cough-try v. Globe Woolen Co., 56 N. Y. 124; Bennett v. R. R. Co., 102 U. S. 577. It being settled law, that an occupant of land is bound to use ordinary care and diligence to keep the premises in a safe condition for the presence of persons who come thereon by his invition, express or inplied, or for any other purpose beneficial to him, 2 S. & R. on Reg. § 704; the questions presented by the facts as found are: First, were the premises in an unsafe condition, in the legal sense; and secondly, if so, was that condition the effect of defendant’s want of care and diligence? Had plaintiff sustained the injury from a defect in the premises, or in machinery upon them, assuming negligence in keeping them, the liability of the defendant would be beyond dispute. But, here the injury was inflicted by the act of a boy with a propensity to the mischief, in the employ of the defendant and by him placed on the premises, in a position to do the injury. Why does not such boy so employed and placed, constitute a danger upon the premises, as effectual for evil as a trap door, or pitfall, or a dilapidated stairway? That the cause of the injury need not be an inanimate agency, is shown by the decision in Loomis v. Terry, 17 Wend., 197, where held, that even a trespasser may maintain an action for the bite of ferocious dog left at large on the defendant’s lot. Carroll v. Staten Island R. R. Co., 58 N. Y. 126, 136. In Mallach v. Ridley, 24 Abb. N. C., 172, 181; 15 St. Rep. 4, it is said that, “the stoor-keeper invites the public to enter his premises and to subject themselves to the custody and control of his subordinates ; and by parity of reasoning’’ (with that prevailing in common carrier cases) “ he should be held responsible for the brutalities of such subordinates; even when they are not committed iti the strict line of their employment.” In Dean v. St. Paul Union Depot Co., 37 Am. & Eng. R R. Cas., 360, the court said that, “the defendant was bound to use ordinary care and diligence to keep its premises in a safe condition for those who legitimately come there. It had no more right, therefore, to knowingly and advisely employ, or allow to be employed, in its depot building a dangerous or vicious man, than it would have to harbor a ferocious or savage, dog, or to permit a pitfall or trap into which a passenger might step as he was passing to or from his train.” The case at bar may be new in the instance, but not in the principle; and in the absence of authority to the contrary, upon the analogies of the law and the dictates of common sense, we adjudge that the presence of the boy on the prbmises with his propensity to evil-doing, was a danger against which it was the duty of the defendant, by the exercise of the proper care to protect the plaintiff. We hold, furthermore, that having invited the plaintiff into his store for his benefit, and having authorized and induced her to confide in the good conduct of his servants to whom in the transaction of his business he committed her, he thereby assumed the duty by the exercise of reasonable care, of protecting her from injury by the misconduct - of such servants; and that he is answerable to her for any injury she has sustained by such misconduct, which, in the exercise of reasonable care, he might have prevented.

The verdict involves the fact of his failure in the exercise of the duty so incumbent upon him. Sutter v. Vanderveer, 122 N. Y. 652, 654; 34 St. Rep. 211; and we are to inquire whether the evidence suffices to justify the finding of the jury. The proof is ample to authorize these inferences; that the defendant kept in his store a number of “cash boys” for attendance on customers; shat among these boys the propensity and habit of “snapping pins” at objects and persons in the store were prevalent; that this snapping or shooting pins by these boys was likely to inflict injury on defendant’s customers, and did, in fact, inflict the injury of which the plaintiff complains; that this habit of snapping or shooting pins by these boys, had existed for months, and was known or ought to have been known by the defendant; that no reasonably sufficient precaution was taken by hirn to suppress the dangerous practice; and that he had not exercised a' reasonable degree of care and diligence to secure the plaintiff against injury from such dangerous practice. Such being the duty of the defendant and its breach to the injury of the plaintiff, and no contributory negligence being imputed to her, the right on her part to reparation in damages for the wrong, is clear and incontestable.

We are further of the opinion that plaintiff’s cause of action is so supported by the proof, that the court is not at liberty to set aside the verdict as against the weight of evidence. Nelson v. Easton & A. R. R. Co., herewith decided, 58 St. Rep.—. Hence, the judgment must be affirmed; unless the exception to the refusal to dismiss the complaint be valid, or there be prejudical error in the charge, or in the omission or exclusion of evidence. On the conclusion of the plaintiff’s case, and again at the close of all the evidence, the defendant moved to dismiss the complaint on the ground that the cause of action pleaded was unproved. But, it is obvious on inspection of the complaint, that it proceeds as well upon the duty of the defendant to protect the plaintiff from danger on his premises, as upon his duty to secure her against injury by his servants in the course of their employment. The court, also, put the case to the jury on the same theory.' To the charge itself no exception was taken; and, indeed, it was unexceptional. Three requests called upon the. court to charge that there was no evidence to support specific propositions of fact. On a motion to nonsuit or dismiss, it is undoubtedly the duty of the court to determine what the evidence is ; but submitting the case to the jury, it is a question whether the court may rightly instruct them that there is no proof of a particular fact. That matter being already decided by the judge, the deliberations of the jury are conducted on the assumption of some evidence of every essential fact ; and their function is only to determine the sufficiency of the evidence. However this may be, there was adequate evidence of the facts suggested by the appellant; and so, his requests were properly denied.

The other requests proceed on the supposition that no recovery could be had unless the injury to the plaintiff was caused by a servant in the line of his employment; whereas, it is already apparent in this opinion, that his liability stands well upon another and different principle of law.

The vicious habit of the boys was admissible in evidence, both as a substantive fact in the cause and as affecting defendant’s knowledge of the danger incurred by plaintiff on his premises.

A statement of a witness to a third party not of the res gestae, and not tending to impeach his testimony in chief, is clearly in-, competent even on cross-examination.

If, however, there was error in the exclusion, it was harmless, because of the introduction of the statement at a subsequent stage of the trial.

Similarly, the error, if any, in allowing the question to plaintiff’s superintendent was innocuous, because the answer was in favor of the defendant. Besides, no ground of objection was specified. Evidence by the plaintiff explanatory of her procrastination in bringing suit, we are not at liberty to condemn as immaterial, since in his brief before us as appellant carefully inserts the statement that “this action was commenced three days before the day of which it would have been outlawed. ’’ If the fact of the delay be deemed of effect upon us, it could hardly have been without influence with the jury. In the absence of error in the record, we affirm the judgment. Judgment and order affirmed,, with costs.

All concur.


source: Caselaw Access Project

author: Finch, J.

license: Public Domain

text:
    In the Matter of the Application of the Collateral Inheritance Tax on the Estate of Clarissa E. Curtis, Deceased.

      (Court of Appeals,

      Filed April, 1894.)

    1. Tax—Collateral inheritance.
    Until the state can establish that some beneficial interest will pass to persons in whose hands it will be taxable, the right to assess the collateral inheritance cannot arise.
    3. Same.
    Only real and beneficial interests are subject to such tax.
    3. Same—Contingent interests.
    Contingent interests, which vest in no specific beneficiary when the wil takes effect, cannot then be taxed. They come under the operation of the statute when the event, which locates and fixes them, occurs.
    AHPEAb from an order of the general term of the supreme court of the first department reversing an order of the surrogate of the county of New York entered upon the appraisement of interests under the will of Clarissa E. Curtis, deceased.

      Edward Hassett, for app’lt; Cortlandt Irving, for resp’t.

       Affirming 56 St. Rep., 113.

   Finch, J.

The testatrix, by the terms of her will, created a group of trusts for the benefit of her two daughters and two named grandchildren, each trust running for the life of the beneficiary ; and then devised and bequeathed remainders over to such of her named nephews and nieces as should be living at the time of the successive termination of each of such trusts, or if any such beneficiaries should then be dead, to their then living issue._ There was a power of sale given to the executors, but no explicit or imperative command to sell, and the intention of testatrix in that respect is left open to inference. The surrogate decreed that the remainders were liable to taxation under the Collateral Inheritance Act as it stood in 1885, and caused the values to be appraised and the amounts of the tax to be fixed. On appeal to the general term that decree was reversed, the court deciding that the appraisal and assessment were premature, and from that decision the present appeal is brought.

I do not deem it necessary to discuss or determine the two difficult questions which were argued at the bar; first, whether the real estate of the testatrix is tq be regarded as personal by force of an equitable conversion resulting from the provisions of the will; and second, whether the contingent limitations in remainder to the nephews and nieces vested in them at the death of the testatrix, subject, however, to be divested by their deaths before the termination of the trusts, or did not vest at all until such last period, and only in the nephews and nieces or their issue then surviving; for in any view which may be taken of those questions, there will always remain the one decisive fact, whatever may he the correct legal theory which describes and explains it, that until the end of the trusts it cannot be determined whether the property represented by the remainders will be taxable at all; that is to say, whether it will pass actually and beneficially to persons in whose hands it will be taxable, or to others in whose possession it will be exempt. If in the end these remainders go to the nephews and nieces a tax will be imposed; but if, instead of passing to them, the remainders should go to the children and grandchildren, they would be exempt from taxation. Under this will, however, we may speculate as to the technical location of the fee pending the running of the trusts, the actual and beneficial interest in remainder may pass wholly to the two daughters by intestacy. If, before the termination of the trusts, the two nieces, children of Edwin Eacey, should die without leaving issue or issue living at the supposed date, the will would fail to operate upon one-half of the estate in remainder, and that would devolve at once upon the two daughters as heirs or next of kin. In like manner if the three nephews should die without issue living, as one of them already has, the other half of the remainder would take the.same direction ; so that until the termination of the trusts it will be impossible to know whether the remainders are in truth taxable or not. Prior to that event the state cannot establish that any beneficial interest will pass to persons in whose hands it will be taxable, and until it can show that vital and necessary fact its right to the tax cannot arise. A time will come, at the close of the trusts, when the question can be settled, and if then the property passes to. the nephews and nieces the proper assessment can be made and collected.

The only possible answer is that made by the Surrogate. He says that the remainders vested in the nephews and nieces at once upon the death of the testatrix and so became contingent interests taxable under the law. If that technical vesting be admitted, what so passed was rather a theoretical possibility than a tangible reality, for the life estate was in the trustee of the daughters carrying the whole beneficial use; there was no power over it in the contingent remaindermen, and the nominal and technical fee might never become a taxable estate. It was never intended by the law to tax a theory having no real substance behind it. As As was said in Matter of Swift, 137 N. Y. 86; 50 St. Rep. 81, the question of taxation is one of fact and cannot turn on theories or' fictions. This case illustrates one result of the contrary doctrine. Walter Racey,1 a nephew named, has died without issue. He never took anything beneficial under the will and his estate can take nothing, and yet it is assessed for about one thousand dollars which it is said will more than exhaust all that he left, and in return for which he received actually nothing and theoretically only an unsubstantial legal fabric. That is to unjust to be borne. I do not at all criticise the wisdom of the law' which imposes a tax upon the succession of collaterals to estates which "usually they did not help to earn and very, often do not deserve. On the contrary, I deem the law thoroughly wise and just; but it does-not at all follow that collaterals should be taxed upon property which they never received and upon what is in form but a theory and in fact only an illusion. The law itself .gives abundant evidence in its language of the intent to subject only real and beneficial interests to taxation, and nothing in its policy justifies the imposition of such a burden where no corresponding benefit has been received. The surrogate seems to have rested his conclusion upon our recent decision in Matter of Stewart, 131 N. Y, 277; 43 St. Rep. 171. The opinion in that case cannot be held in any respect to justify such a construction. It does decide that contingent interests although vesting in possession ata future day may be at once valued and. assessed, and that such interests vesting in no specific beneficiary when the will takes effect cannot then be taxed, but come under the operation of the law when the efrent which locates and fixes them occurs. It may possibly be that where the only contingency of the future is upon which of several named persons or classes of persons, all of whom are liable-to suffer the taxation, the beneficial interests will ultimately devolve, the appraisal and assessment need not be postponed, though even that is hardly a prudent construction, but need not now be discussed, yet where the contingency touches the taxable-character of the succession, where it is only in the chance of uncertain events that the beneficial interests will finally alight where it will be taxable at all, a delay until the contingency is solved is both just and necessary.

This was substantially the view taken by the general term, and it seems to me to be clearly right and just. It protects and preserves the interest of the devisees and legatees on the one hand,, and the right of-the estate on the other.

The other appealed from should be affirmed, with costs.

All concur.

Order affirmed.


author: Pratt, J. Cullen, J.

text:
    Anna M. Arnold, Resp’t, v. Norfolk and New Brunswick Hosiery Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February, 1894.)

    1. Fbaud— Commendation.
    Simple commendation of wares does not constitute fraud.
    3. Same.
    While the vendor may puff his goods, he must not tell falsehoods to induce others to buy them.
    Appeal by the defendant, the Norfolk and New Brunswick Hosiery Company, from a judgment of the supreme court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 10th day of August, 1893, rendered upon the decision of the court after a trial at the Kings county special term.
    The court before which the action was tried found among other things:
    That on the 10th day of April, 1882, the plaintiff and defendant, for a valuable consideration, executed and delivered, each to-the other, a written agreement under seal, made between Anna M. Arnold, of the city of New York, party of the first part, and the Norfolk and New Brunswick Hosiery Company, a corporation created under the laws of the State of New Jersey, and doing business in the city of New Brunswick, New Jersey, and at Norfolk,, Connecticut, party of the second part, reciting that the party of the first part was the exclusive owner of all rights, title and interest in and to certain letters patent: Letters patent of the United States granted to Satterlee Arnold, dated June 21, 1870, No. 104,532, for an “ improvement in modes of uniting edges of knitted goods.” Letters patent of the United States granted to Satterlee Arnold, assignor, dated May 10, 1881, No. 241,116, for a “ device for securing knit fabrics while being cut and sewed,” and letters patent of the United States granted to Satterlee Arnold, assignor, dated November 22,1881, No. 249,734, for “means for trimming fabrics; ” in which the party of the second part was desirous of acquiring certain rights and privileges and providing that the party of the first part thereby granted to the party of the second part the exclusive right for the United States of America under each of the above-named letters patent, and under any other patent which has been or may hereafter,' during the continuance of this agreement, be granted to the party of the first part or to Satterlee Arnold, her husband, for any improvement or invention whatsoever, appertaining to or useful in making what is known as the “ Anchor stitch seam ” or appertaining to “Anchor sewing machine trimming and holding device,” and under any such invention now or hereafter during the continuance of this agreement made by said Satterlee Arnold, to make, use and sell any and all kinds of knit shirts and drawers known as “ men’s, women’s and children’s underwear,” with the Anchor stitch seam or Anchor sewing machine trimming, and also to license others so to do. In consideration of which grant the party of the second part thereby covenanted and agreed to pay to the party of the first part, as royalty for and on account of the rights and privileges, certain sums of money on all shirts and drawers upon which said inventions, or either of .them, should be used, such royalties to become due and to be paid as therein provided, guaranteeing that said royalties should amount to the average sum of $1,000 per month in every twelve months from and after the 1st day of January, 1883. The party of the first part further covenanted and agreed to furnish the party of the second part, at a reasonable price, as many Anchor sewing machines and appurtenances as the party of the second part should desire.
    That such agreement was made, executed and delivered by the -defendant after trial and experiment by the defendant of the capacity and operativeness of the machines referred to in the answer herein, and known herein as the Anchor sewing machine Ho. 1.
    That the trial and experiments of said machines so made by the defendant was ample to enable said defendant practically to determine the number of stitches made by said machines per minute, and whether said machines “skipped” stitches or “puckered,” and generally to determine the durability, capacity and operativeness of said machines ; and
    That said contract was made, executed and delivered by said defendant to said plaintiff without any inducement by any false or fraudulent representations made by said plaintiff or her agents in respect to the capacity or operativeness of the said Anchor sewing machine Ho. 1.

      Walter D. Edmonds and John Hunter, Jr., for app’lt; Blackwell Bros., for resp’t.
   Pratt, J.

The question of fact upon which this action depends, was properly determined at special term.

The opinion there delivered is fully sustained by the evidence. We have examined the numerous exceptions and find none that require discussion. The judgment should be affirmed, with costs.

Dykman, J., concurs.

Order modified, Order to be settled by Pratt, J.

The opinion by Cullen, J., is as follows:

Cullen, J.

Mr. Edmonds, I don’t think your client is entitled to relief in this case. How, take this in its broadest aspect, .and just see.

In the first place, you take the undisputed facts in this case. This man brought a seam to you. How, the court has seen what you have produced as a sample of a similar seam, and it appears to be conceded by everybody that it is an excellent seam. How he is asked, “did you produce that by a machine?” “Yes.” There is no fraud in that. He had made the machine. He gives it to you. That the machine that he produced before you would make the stich is undisputed ; because, anyway, the first thing you would ask a man is, “if you have got a seam, let me see the machine which made it.” And so a boy in a store for two years would do.

He brought this machine to you. How, he didn’t pretend that he had any other machine. These were the machines which had done that work. He gave them to you, and you had them for a year. Now, I can’t believe—all your arguments to the contrary, Mr. Edmonds—that long before the expiration of that year your company was not fully aware of the defects as well as the advantages of that present machine. Yours was an old company. Erom the fact that they had been in business so long the court must assume that they were a fairly successful company ; and to be fairly successful in these times of sharp competition means business run with heads and brains; and I must believe that your people had just as much wit about an application for an invention of this kind as you would if a man had come and offered to sell you some peculiar, new kind of wool to put in your garments. Of course the court does not suppose that you had the technical knowledge of the sewing machines in your business such as this man Arnold had; and if he had deceived yon on a thing connected with that, the court might and would have granted you relief. But that is not the case. The fact wasth is. We take the machine as you state it. There is a machine which produces a •stitch which is as good a stitch as could be wanted. The trouble ■is that it won’t produce that stitch quick enough to make it pay for you to do it. I won’t go over the old argument. How slowly that ran you knew just as well as he did, from actual experience. You knew that anything he told you about what he could do in the future was matter merely of opinion, because he could not have had the practical knowledge. He had never made ■such a machine. I agree with you, -if there were something mechanical, so apparent that any mechanic might have known it —involving a question like the strength of iron, that a layman might be ignorant of—he might have deceived you. But this was plainly nothing of that kind. He said that he could make them go faster, according to your account. Now, that could not be a fraud. It must only be a matter of expectation. You knew he never had made one; otherwise he would have given you the machine that went faster. It was simply a statement of what he hoped to do. He admits that. Now, you have that -agreement for six months ; that enables you to cut that off. You gave him a part of the profit. You chose to change that into this ■other agreement. Now, the court cannot believe it took 180— how many years was this to run ?

Mr. Edmonds.—Seventeen years.

The Court.—At $12,000 a year?

Mr. Edmonds.—Yes.

The Court.—Well, it took over $200,000. Now, the court can’t believe but that you used some wit, some business ability about such a thing, and the fact must have been that, whatever the subsequent facts proved to be, you people must have believed that a machine of that kind was a thing which would turn out profitably. Whether it turned out profitably did not depend alone on the machine. It depended on how the market would •take the product. Now, it has turned out that it has not been profitable, but what was the cause I do not know. That this plaintiff’s husband could have made the representation that you set up in answer, that it would be commercially profitable, cannot be the fact. What would be commercially profitable would depend upon the trade.

Now, this machine has been made, and you have abandoned it. What the reason is does not appear. You say that it is because it would not do any of the work. The court cannpt believe that that is the only reason; because after you had had that for a year, when you had had this optional agreement for six months, you never would have taken the risk of tying yourselves up unless you had believed at that time that those goods would pay.

Now, it has turned out the same way as with other people who make speculations and fail on them, who have judgment. It has turned out that you cannot make the goods on that, or that the goods you make don’t give you sufficient price, compared to other goods, to make a profit. Whether it is that the market don’t take them, and you were mistaken in your judgment when you thought you had such a good thing, I cannot tell. I am very clear it did not come from the defect of the machine. And the same way as the court has already told you, if you have those eighty machines, if they were running for six or eight months, you would have sent those back, and your correspondence would be filled with the upbraiding of that man for sending a machine which had been defective. And yet you took them.

Now, I can believe that you have got there the machine which you supposed at the time was going to be a good and profitable machine, and that he made some representations about it; I have no doubt that he said it was a good thing, that it was the best invention made, and would revolutionize the trade—probably all those things, and more. The rule is plain that simple commendation does not constitute fraud. A dealer may puff bis wares, though he must not lie about them. But I cannot see that there was any statement of fact, or any statement which could be construed as a statement of fact even if it was a matter which could be termed opinion, if it was an existing thing, that he made at that time, which was false. I cannot believe that you ever relied on any statement about the conditions of that machine, and went and made this contract. I don’t believe that he made even those promises that they should go so much faster ; because if he did, as I say, you would not have taken them when you knew that a machine of 300 was worth nothing. You would have said: “Make me a machine of a 1,000, and then we will make the contract.” I don’t believe that, also, because you would have sent the machines back.

So much for the character of the machine. Now, you come to another set of facts, and that'is as to the representations as to the state of 1ns patent. Now, while a man may puff his goods, a man must not tell falsehoods to induce others to buy them. But did this man tell a falsehood ? Did you act on it? Did you rely on it ? If I found he had told material falsehoods, it would not take very much evidence to make me believe that you had acted on it, for I am not in favor of fraud in these times. But did lie?

Now, this agreement was very loosely drawn. He does not bind himself to get any particular patents. It is quite evident, though, and I find the fact, that it did relate to this anchor stitch. He talked with Mr. Letsen. This letter is produced. I think it is clear as anything can be, from the tone and character of that letter, Mr. Edmonds, that that letter was not meant tobe shown to a board of directors; that that was the very letter that a man would write in the ordinary course. It would be very likely, if he intended it for the board, that he would commence: “Mr. Letsen, for the sake of your directors, whom it is to be put before, my proposition is stated.” Now, look at that letter. If this was to the board of directors—the very terms of the agreement are not agreed upon. He says: “Now it is your turn to suggest amendments.” You have not fixed on the terms of the agreement. So with the whole context of that letter. Unless you imagine a man with ingenuity and genius which would be marvelous, having preconceived this scheme of fraud from the beginning, and, therefore, written a letter not to look like it, that letter was never written to be shown to a directors’ meeting at all. Now, Mr. Letsen and his men must have talked together very often about it. It is very evident, really, from this. It is plain that this gentleman, Mr. Carpenter, is not entirely memory-clear. His memory has been refreshed from time to time. He may be very wrong, and honestly wrong, on a transaction nine years ago. But when you come to set aside, on the ground of fraud, a contract that has been lived up to, the evidence ought to be plainer than it is.

Now, I think this letter solely applies to the two-stitch patent, and not to the three, and there is nothing there to show that it was otherwise. If he wanted to put it to a board of directors, so that the board of directors would examine them, wouldn’t this have put them right on their guard—the opinion which he quoted? The fact was that the board of directors was Mr. Johnson Letsen. This thing was done by Mr. Johnson Letsen himself, and if the board of directors had been active persons, one of them would have inquired: What does this mean—there may be a fight there ?” Now, I cannot believe anything of the kind. I must believe that Mr. Johnson Letsen knew, from time to time the condition of these patents. He lived till 1884. Until that time, lie knew everything that this man had told and been told. If the machines were furnished in 1888, nothing had come out about the patents. But the fact is, as to how these machines were working, he was the man, at any time, to have put an end to that contract, and would have done it in his lifetime if this man had told him a falsehood.

There is another thing. Your people don’t think they are • defrauded themselves. He gave an interest to Ashwell, who has been sitting here with them. If, as you have said (and I don’t say it is not subject to that criticism), Arnold sought to interest him in the machine and get you to take it, and you have been de= frauded into a contract of nearly $200,000 or more, there is a man who you claim should have been loyal to you, who helps impose this fraud upon you, an d yet you keep him there and pay him. If he were the best salesman in his department, you would’nt have him.

Hovy, this is an unfortunate speculation for this company, but it is not the only-unfortunate speculation which people go into. One of your witnesses told the whole story as well as it could be told. He said: “This is just like perpetual motion. People are always just about to get it.” It has proved an unfortunate speculation, but I find that there is no evidence of fraud here in this case.

I should have preferred to have formulated may views in writing. But the time is so short that, as I have to go away, and I want to leave timp enough for you gentlemen to present your request to find, I have preferred to do it at this stage.


author: Wright, J.

text:
    Rush S. Watson, Pl'ff, v. The Oswego Street Railway Company, Def’t.

      (Supreme Court, Oswego Special Term,

      Filed March, 1894.)

    Assault and battery—Force.
    Where the physical contact of the conductor upon the passenger is, in the slightest degree, a constraining power in causing him to abandon his right of passage and leave the car, it constitutes force in the legal acceptation of that term.
    Motion by the plaintiff for a new trial made on the judge’s minutes on the following grounds :

      First. That the court erred in charging the jury, at the request of the defendant’s counsel, that no force was used in removing the plaintiff from the defendant’s street car.

      Second. That the court erred in charging that the jury, in determining the question involved, might take into consideration the fact of the omission of the plaintiff to testify on the trial.

      W. E. Kenyon, for motion; J. C. & Lt W. Churchill, opposed.
   Wright, J.

While the plaintiff was standing on the defendant’s car, being in a weak condition from the administration of anaesthetics by a physician, the president of the defendant, observing the plaintiff’s condition and believing it to be that of drunkenness, ordered the conductor to put him off. The conductor thereupon, in obedience to the command, ordered the plaintiff to leave the car, and put his hand on his arm. The plaintiff thereupon, with the assistance of the conductor and a friend, complied with the order.

The witness Paige testified: “Callanen (the president of the defendant company), said ‘Put that man off; he is drunk.’ He cried the same thing again. -Then, the conductor said to the plaintiff, ‘You will have to get off,’ and put his hand on his arm, and he and I helped him down into the street.”

The witness Keller testified: “Callanen ordered- the plaintiff from the car, and the car was stopped, and the plaintiff was removed from the car.”

Callanen, a witness for the defense, testified : “I saw the plaintiff swaying and staggering on the platform. I hailed the conductor and told him to put him off. No one was with the plaintiff at that time caring for him. He was slipped off. He was perfectly helpless. The conductor just helped him off.”

A witness for the defense testified, “ no force was used in the removal.

Force is defined as “Power dynamically considered, that is, in motion or in action ; constraining power ; compulsion ; strength directed to an end. Unlawful violence which may be implied as in every trespass.” Black’s Law Diet.

It is also defined as “Strength or power exercised without law upon persons or things.” Burrill’s Law Diet.

A mere unlawful direction by a conductor to passengers, unattended with menace, threats of violence or other wrongful element, is not a thing upon which the implication of force can be predicated. But the plaintiff urges that the act of the conductor was both a menace and active force.

If the conductor’s act was a menace—an exhibition of a disposition to use personal strength to remove the plaintiff—and the plaintiff was thereby put in fear of such use of physical strength, that act constituted force. The question, therefore, is, was there any menace, or any use of actual physical strength in the removal. In determining that fact we must consider not only the act, but the intention that prompted it.

The removal of the plaintiff was indisputably the result of the conductor’s order, or of his order and the conductor’s physical contact with him. The defendant contends that it was solely the result of the order, and that the question of force must be detertermined by the conductor’s intention, and that the whole body of the evidence, considered together, shows conclusively that the plaintiff gave obedience to the conductor’s order willingly and without the slightest physical compulsion; and that the sole act and intention of the conductor was to render such help to the plaintiff, which he in his enfeebled condition greatly needed. That such in fact was the sole character and purpose of the conductor’s act is not conclusively apparent. The generous impulse and purpose of helpfulness may have acted jointly and in union with the purpose and act of a compulsory character. The charitable purpose does not necessarily exclude a compulsory purpose.

The removal, though forcible, may have absolutely required for its accomplishment in a humane manner the helpfulness and assistance given by the conductor. This idea of helpfulness in the case raises an important element for the consideration of the jury on the question of damages; but here the inquiry is whether or not the proof on that point is essentially inconsistent with any degree of “constraining power,” for the amount of force exercised is not material for present consideration.

If the physical contact of the conductor upon the plaintiff was in the slightest degree a “ constraining power ” in causing him to act—to abandon his right of passage and leave the car—it constituted force in the legal acceptation of that term. Holding as a matter of law that said physical contact had no such constraining .efficacy was, in view of all the circumstances of the ease, unwarranted, and the charge, in taking all question in that regard from the consideration and determination by the jury,was an erroneous invasion of its province; for though the facts are uncontroverted,' yet since sound minds might reasonably differ in regard to what inference should be drawn therefrom, a court is not warranted in determining that inference. Hart v. Hudson River Bridge Co., 80 N. Y. 622.

From the smallness of the verdict it is reasonably inferable that the error may have produced an effect prejudicial to the plaintiff, and for that error, therefore, he is entitled to a new trial.

The second ground of alleged error is untenable. Bleecker v. Johnston, 69 N. Y. 309 ; Whitney v. Town of Ticonderoga, 127 id. 46; 37 St. Rep. 135.

An order granting a new trial may be entered, with costs, to abide the event.

Ordered accordingly.


author: Yah Wyck, J.

text:
    Moses Schwarz, Resp’t, v. William McKenzie, Defendant, George G. Musson, Purchaser, App’lt.

      (Brooklyn City Court, General Term,

      Filed March, 1894.)

    Execution—Decedent—Leave.
    Leave to issue execution against the property of a decedent, sold after his death, will not be granted, where his executrix received, upon such sale, a sum largely exceeding the amount of the judgment, and no effort to collect it from her has been made.
    Appeal from an order granting leave to issue execution against the property of a deceased judgment debtor.

      Herman G. Loew, for resp’t; Edwin Kempton, for app’lt.
   Yah Wyck, J.

Plaintiff recovered, on April 12,1882, a judgment for $135.01 against defendant, who died May 21, 1890, seized of an undivided one-third share in No. 285 Livingston street, leaving the same by will to his sister, to whom letters testamentary were duly granted. A sale of the premises was made July 13, 1892, in pursuance of a judgment in partition, and the appellant, Musson, became the purchaser, relying upon the fact that the judgment had run more than ten years, and on the report of the referee that the judgment debtor and this owner of the interest were not the same person, which was confirmed by the judgment of partition. The executrix of William McKenzie received from the referee $1,000 for his share of the premises. The respondent (judgment creditor) contends that, not being a party to the partition action, his lien was extended over the ten years by § 1380 of the Code of Civil Procedure, and that the court had power to grant the order appealed from, giving him leave to issue execution against the share of William McKenzie in the premises, notwithstanding the sale.

The appellant (purchaser) insists that he, being a purchaser in good faith, was expressly exempted from such extension of the lien by § 1255 of the Code of Civil Procedure.

We do not feel called upon to decide the question of the courts’ power, for, assuming it to exist, the appellant has shown no necessity for its exercise, nor equities for the same. The executrix, who is liable for the debts of William McKenzie, has received $1,000 for this share paid by the purchaser, and no effort to collect appellant’s claim from the executrix has been shown, not even a demand therefor.

We think the order ought to be reversed, with ten dollars costs and disbursements.

Order reversed, with ten dollars costs and disbursements.

Clement, Ch. J., concurs.


author: Osborne, J.

text:
    William A. Vredenburgh, Respt, v. Albert T. Pall, App’lt.

      (Brooklyn City Court, General Term,

      Filed March, 1894)

    Appeal— Chakbe.
    An exeeption to a refusal to charge a request which, embodying a sound proposition of law, is not applicable to the issues made in the action, is not tenable.
    Appeal from judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial on the minutes.
    Action upon a promissory note made by the defendant to the order of one Dunn, and by him indorsed to the plaintiff. The answer set up the payment of usurious interest in pursuance of an agreement between the plaintiff and defendant.
    At the close of the charge the defendant requested the court to charge that if the jury believed that the note sued upon was given in renewal of a note which was given by the defendant Pall to Dunn without consideration, whether for the purpose of having it discounted by the plaintiff or not, and the plaintiff did discount it, and charged Dunn for such discount a greater rate than six per cent, per year, then the note had no inception until such discount, and it was usurious and void; also, that if the jury believed that the note in suit was given in renewal of a note for $150, given by the defendant to Dunn, without consideration, which Dunn sold to plaintiff for $135, then both notes were void for usury; also, that even if the jury believed that Dunn told the plaintiff the note was a valid note in his hands against defendant, and that plaintiff believed it and relied upon Dunn’s statement, nevertheless, the note was usurious and void if plaintiff discounted it at a greater rate than six per cent, per year, and it was, in fact, without consideration; all of which the court refused to charge except as already charged.

      Archibald G. Shenstone, for app’lt; Klein & Bendich, for resp’t.
   Osborne, J.

This action was brought to recover the amount of a certain demand note made by the defendant to the order of one Dunn, and by him indorsed and transferred to plaintiff. Defendant admitted the making of the note in suit, but alleged that previous to the making thereof he had made a certain other note for the accommodation of said Dunn, which plaintiff had discounted at a usurious rate under a corrupt agreement with said Dunn so to do; that when said note matured plaintiff agreed with defendant to extend the time for the payment thereof at a usurious rate of interest, and that then the note in suit was given and the usurious interest was paid in cash in pursuance of such agreement; two further extensions of the time of the payment of the note in suit were also alleged as the result of other usurious-agreements between plaintiff and defendant.

Plaintiff had a verdict, and this appeal comes before us on exceptions taken to the refusal of the learned trial judge to charge certain requests submitted by the learned counsel for the defendant other than as already charged.

We are of the .opinion that the exceptions are not tenable, for,, while they may embody sound propositions of law, they were not applicable to the issues made in this action other than’to extent that they had already been charged by the learned trial judge. Defendant had the affirmative at the trial, and the contention sought to be maintained by him was that plaintiff had made an agreement with the defendant under which plaintiff had demanded and received a -greater sum than the legal rate of interest for the forbearance of his claim. This was denied by plaintiff and the-case was tried and submitted to the jury on the issue thus made,, on a charge which clearly defined the law which the jury was to apply to the facts as it found them to be. Plaintiff obtained a verdict in his favor, and we can .see no reason for disturbing it.


author: McAdam, J.

text:
    The People ex rel. John Ryan, Pl’ff, v. William Dalton et al., Def’ts.

      (New York Superior Court, Special Term,

      Filed March, 1894.)

    1. Excise—Certiorari.
    Courts will interfere, upon certiorari, only where the action of the hoard of .excise is arbitrary and capricious and without good and substantial reasons.
    Certiorari to review proceedings of commissioners.

      L. J. Grant, for relator; Edward Browne, for resp’ts.
   McAdam, J.

The relator applied for a hotel liquor license for the premises No. 917 Sixth avenue, in the city of New York. Protests against granting the license were filed with the commissioners by James R Waterlow, Michael Cozle, John Hardy, and H. D. W. Burt, residents of the neighborhood, while a petitition in favor of granting the license was signed by eighteen other neighbors. The commissioners gave the applicants and contestants a hearing, at which testimony was taken covering forty-seven typewritten pages, on the conclusion of which the commissioners made the following decision : “ The application of John .Ryan for a hotel license at the premises No. 917 Sixth avenue is rejected, and a license refused, for the reason that, considering the rights and interests of the property owners and residents of the neighborhood, and the number of existing licensed places in the vicinity of the place for which the license is sought, the commissioners of excise are satisfied that there is no immediate necessity or convenience to be served in granting such application at this time. On the further ground that the board of excise is of the opinion that the application is an attempt on the part of the applicant to secure a bar privilege under the guise of an application for a hotel, inasmuch as that part of the premises fitted up for the bar is on the ground floor front of said building, and has every appearance of a saloon ; and, as there are two other licensed saloons on the corners of Sixth avenue and Fifty-second street, the granting of this application would be practically to establish a third drinking place, in violation of a rule of the board of' excise in existence ana enforced for the past six years.”

All the questions decided were the subject of evidence pro and con, and the conclusion reached, being sufficiently sustained, should not be disturbed. This court made a general decision in regard to writs of mandamus in excise cases (N. Y. L. J., June 25, 1892), in which, among other things, it was held that “such boards must, in the nature of things, determine whether the applicant possesses the qualifications required by section 18 of the act; whether the place is one which ought to be licensed ; whether its proximity to a church or school house, or to other saloons in the neighborhood, makes it unwise and improper to grant the occupant a license. ”

In People ex rel. O'Toole v. Board of Excise, 42 St. Rep. 39, affd. by court of appeals, 45 id. 932, it was held that it was within the power of the board of excise, in the exercise of its discretion, to determine that liquor stores on three corners of intersecting streets render the fourth corner a place where a license might not properly be granted, and that its decisions to that effect was not abuse of discretion.

The superior court rule, before referred to, would undoubtedly leave it discretionary with the board to decide that two liquor stores on two corners of intersecting streets was one too many.

Indeed, courts are to interfere upon certiorari only where the action of the board is arbitrary and capricious, and without good and substantial reasons.

If the board had not accorded a full hearing, one might have been directed.

But a hearing was had, and the board having determined, after judicial inquiry and upon conflicting proofs, that the place for which a license was sought was not a hotel within the meaning of the act, and that the application was an attempt on the part of the applicant to secure, under the guise of being a hotel keeper, a license for an ordinary bar room, when he knew that three on adjoining corners was a violation of the regulations of the board, such adjudication being within its judicial powers, cannot be said to be arbitrary and capricious or without cause.

Ror does it necessarily follow that every hotel keeper is entitled to a liquor license, even if the hotel be the only one in the neighborhood. The board must pass upon the qualifications of the applicant and the public necessity for the license. Liquor is not necessary to the existence of a hotel. Indeed, there are many where none can be had, and guests in large cities can, as a rule, obtain all the liquor they require without much journeying. In this instance they can be accommodated on either of the two adjoining comers.

It follows that the writ must be quashed and application denied.

Writ quashed and application denied.


author: Bischoff, J.

text:
    John Jackson, Resp’t, v. Frederick Rode, App’lt.
    ( New York Common Pleas, General Term,

      Filed April 2, 1894.)

    1. Contract—When consummated.
    Until an oiler is unconditionally accepted or the proposed modification of such offer is unconditionally assented to by the offerer, there is' no agreement.

      2. Same—Withdrawal.
    Prior to such time, either party may withdraw Ms proposition.
    Action ,to„recover damages alleged to have accrued from defendant’s breach of a contract of lease by his refusal to assume possession of the premises alleged to have been demised to him. Appeal from a judgment for plaintiff rendered by. the district court in the city of New York for the eleventh judicial district.

      George Rill, for app’lt; Herbert J. Rindes, for resp’t. -
   Bischoff, J.

It is impossible upon attentive consideration of the evidence to conclude that a lease was at any time entered into between the defendant and plaintiff’s assignor: All the negotiations between the parties concededly existed only in the correspondence between them. On October 13th, 1893, defendant wrote to plaintiff’s assignor offering to accept a lease for the new Bochelle house from November 1st, 1893, to April 1st, 1894 at the monthly rental of twenty-five dollars. In response to this the assignor called at defendant’s residence but failed to meet the latter. On October 16th defendant again wrote referring to the occasion of the assignor’s call and expressing regret at not meeting him. In this last mentioned letter defendant mentions the fact that he was informed by his wife that he (the assignor) had accepted his (defendant’s) offer of October 13th and refers to the assignor’s expressed wish to have possession of the house surrendered to him on March 20th, 1894, to enable him to proceed with contemplated decorations and repairs to which proposed surrender however defendant refused to accede. On October 17th plaintiff’s assignor replied by refusing to recede from his proposal that the house be surrendered to him at the time mentioned, and on October 23rd defendant again wrote, this time withdrawing his offer to accept a lease altogether. This last letter evoked a response from plaintiff’s assignor which was to the effect that he would hold defendant to his offer of October 16th. It is apparent that the minds of the parties never met, that they had never fully agreed respecting the terms of any proposed lease, defendant insisting that it should endure until April 1st and plaintiff’s assignor that it should expire on March 20th. Consistently with his withdrawal of the offer to accept a lease defendant concededly never occupied the premises during any part of the proposed term. Until therefore, defendant’s offer was unconditionally accepted by plaintiff’s assignor, or the latter’s proposed modification of the offer was unconditionally assented to by the defendant, there was no agreement, hence no lease; and before his offer was unconditionally accepted by plaintiff’s assignor it was competent to defendant to withdraw it. Schenectady Stove Co. v. Holbrook, 101 N. Y. 45. It was error on the part of the justice below to award damages in any amount to the plaintiff and as upon the facts the judgment must be reversed and the complaint be dismissed it is unnecessary to examine other grounds of the alleged error. Judgment reversed, and complaint dismissed, with «costs of this appeal and of the court below.

All concur.


author: Pryor, J.

text:
    The Hecla Powder Company, Resp’t, v. The Hudson Ore and Iron Company, App’lt.

      (New York Common Pleas, General Term,

      Filed April 2, 1894.)

    1. Pleadings—Pkoof.
    If due objection is made, there can be no recovery on a cause of action not pleaded.
    3. Appeal—Amendment.
    On appeal, to sustain the judgment, there can be no substantial change of the claim or defense.
    Appeal from judgment on trial by referee. The opinion states the case.

      Frank F. Smith, for app’lt; Horace Graves, for resp’t.
   Pryor, J.

The effect of subsequent examination and reflection is to confirm the impression intimated on the argument that pleading one cause of action, the plaintiff was allowed to recover ■upon another and different cause of action. In his brief the learned counsel for the respondent says: “ The plaintiff brought suit for a quantity of blasting powder sold t® the defendant.” In his report the learned referee says : This suit is brought to recover the contract price ” of the powder; and his conclusions of law on the facts proceed upon the same hypothesis. We cannot so construe the complaint. It alleges an agreement by plaintiff to deposit sixty thousand pounds of powder in store at defendant’s place of business, and to sell it to defendant at a certain named price; that defendant stipulated to use said powder 41 to the exclusion of all other powder; that defendant neglected to use the said powder stored as aforesaid, but has used the powder of other manufacturers; and that in April, 1889, defendant refused to use said powder ; that said powder so stored would all have been consumed before January, 1885, if the defendant had used it to the exclusion of all other; that said powder had deteriorated before April, 1889, through the breach aforesaid, and She negligence of the defendant in allowing it to freeze and thaw many times, and had become worthless; that the plaintiff has been damaged by the conduct of the defendant as aforesaid, in the sum of four thousand two hundred dollars.” Here indisputably, is a claim of unliquidated damages for breach of another agreement than to buy and pay for the powder. But, be the claim for such damages upon the breach of an executory contract of purchase, it is still a different cause of action from that for which the recovery was had, namely, goods sold and delivered.

The point that the cause of action pleaded was not proved, the defendant raised by motion to dismiss the complaint.

In Romeyn v. Sickles, 108 N. Y. 650; 13 St. Rep. 864, the court of appeals ruled that a pleading cannot be amended in a material respect, except at a time which will give the opposite party a right and an opportunity to meet by proof the new allegations against him,—saying, “it is a fundamental rule that judgment shall be secundum allegata etprobata, and any departure from the rule is certain to produce .surprise, confusion and injustice.”' In Reed v. McConnell, 133 N. Y. 425; 45 St. Rep. 227, the judgment was reversed because the recovery was for a cause of action not exhibited by the complaint; and, adverting to the remedial policy of the reform Code, the court says : “ The rule that a party coming into court asserting one cause of action cannot recover on another and difference one is unchanged. It is essential to the orderly administration of justice and the protection of the rights of litigants.” In Douglass v. Ferris, 138 N. Y. 192 ; 52 St. Rep. 138, it was held that a defendant cannot avail himself on appeal of a defense not pleaded though apparent in the record, saying, “ it is not every fact that appears in the record that a party can have the benefit of in this court, but only such facts as have been pleaded and proven. Secundum allegata et probata is the rule that governs such cases.” Respondent solicits us, by virtue of § 723 of the Code, to conform his complaint to the proof; but the provision expressly qualifies the power of the court by the condition that the “ amendment does not change substantially the claim or defense.” Romeyn v. Stickles, supra. Other exceptions of probable validity appear in the record, but, since for the error indicated the judgment cannot stand, they require no discussion. Judgment reversed, and new trial ordered, costs to abide the event. All concur.


author: Bischoff, J. Giegerich, J.

text:
    Cochran Cotton Seed Oil Company, Resp’t, v. Julius A. Kugelman, App’lt.

      (New York Common Pleas, General Term,

      Filed April 2,1894)

    1. Former adjudication—Unpaid costs.
    An action cannot be maintained in a district court, where a prior action for the same subject matter has been discontinued with costs, which remain unpaid. -
    3. Same—Proof of non-payment.
    Transcript from docket under the seal of the district court, and the certificate of its clerk that the costs have not been marked paid on the docket, are insufficient proof of non-payment.

      Appeal from, a judgment of the district court in the city of New York for the seventh judicial district, rendered by the justice •without a jury in favor of the plaintiff. Action for goods sold and delivered.

      Campbell & Murphy, for app’lt; Robert B. Honeyman, for resp’t.
   Bischoff, J.

That the justice properly rendered judgment for the plaintiff upon the merits of the cause of action is unquestionable, and this the appellant seems to admit; the argument for a reversal of the judgment being confined to the defense, as interposed, of the pendency of another action alone. The evidence received upon the trial, in the form of testimony and of the parties’ letters relating to the transaction, abundantly sustains the finding that the goods in question were retained by the defendant and resold by him under an agreement that the plaintiff should credit him upon the purchase price due plaintiff for the goods, with any loss occurring upon such re-sale. There is no contradiction as to the amounts to be charged and credited, and no evidence appears which would justify any recovery by the defendant for storage, insurance, &c., and, moreover, no counterclaim was pleaded. There are no exceptions upon the record. As to the defense of another action pending, it was admitted on the trial that an action between the same parties for the same cause had been commenced in the second district court, and that the same ha.d been discontinued. The defendant, however, claims that such action was discontinued by the plaintiff, after appearance by defendant, “with $7 costs,” and claiming that such costs have not been paid, contends that the present action was prematurely brought, under the ruling in Flewelling v. Brandon, 4 Daly, 333. The decision in that case was based upon the provisions of § 45 of chap. 344 of the Laws of 1857 and § 3 of chap. 484 of the Laws of 1862, and, by virtue of the substantial re-enactment of such provisions by §§ 1382 and 1426 of the Consolidation Act (Laws 1882, ch. 410), its application would extend to the existing practice. It was there held that an action could not be maintained in a district court where a prior action for the same subject matter had been discontinued with costs, and such costs had not been paid. It appears, however, from the opinion in that case that the non-payment of such costs was admitted upon the record whereas here we find no trace of any such admission, and it becomes a question whether the defendant has sufficiently proven the defense relied upon. No testimony was given upon this point, and the only evidence appears in the form of a transcript from the docket, under the seal of the second district court, and ■a certificate of the clerk of such court that the $7 costs have not been marked as paid upon such docket. This proof cannot be considered as sufficient to support the affirmative defense in question. The transcript and certificate at best are evidence only of the facts so certified, viz: that no statement of payment was endorsed upon the docket, Consolidation Act, § 1410, and this is by no means sufficient evidence that the costs have not been paid nor •a tender made. No mention of any duty resting upon the clerk to make such an entry upon the docket in the event of payment to the party, is found in the enumeration of such clerk’s duties, as set forth in § 1409 of the Consolidation Act, and it is only of the entries made as so prescribed that the transcript from the docket is evidence. TLie certificate that an entry, which is not apparently the duty of the clerk to make, was not actually made-cannot avail to prove the non-existence of a fact which would justify such entry. No testimony as to non-payment having been adduced, nor any motion made upon the trial, which could in any way call for evidence from the plaintiff as to payment or tender of these costs, the justice properly determined adversely to-the defendant upon this defense. The judgment should be affirmed with costs.

Giegerich, J.

I concur in the reasoning and conclusion reached by Judge Bisohofe upon this appeal. In my opinion, it was incumbent upon the defendant to prove that the costs imposed upon the discontinuance of the former action had not been paid. See Tracy v. Tracy, 59 Hun, 1; 35 St. Rep. 167; Lent v. N. Y. & Mass. R. R. Co., 130 N. Y. 504; 42 St. Rep. 592. In the absence of such proof the judgment should be affirmed.


author: Bisohofe, J.

text:
    John Mahoney, Resp’t, v. Alexander T. Kent, App’lt.

      (New York Common Pleas, General Term,

      Filed April 2, 1894.)

    1. Appeal—Evidence.
    The determination of the court below, upon conflicting evidence, will not be reviewed on appeal.
    8. Pbinoipal and agent—Undisclosed.
    An agent, who fails to disclose his principal, is liable personally to the party with whom he contracts.
    3. Same—Exemption.
    Actual knowledge, on part of creditor, is necessary to relieve agent from, such liability.
    Appeal from a judgment of the district court in the city of New York for the second judicial district rendered by the justice' of the first judicial district court, as acting justice for the second judicial district, without a jury, in favor of the plaintiff. Action for services and disbursements.

      George Edward Kent, for app’lt; James J. Walsh, for resp’t.
   Bisohofe, J.

That the plaintiff was employed by the defendant and that the services in question were rendered during the period for which compensation is claimed, is not disputed; nor is it contradicted that the disbursements which are sought to be recovered, were reasonable and were made in the course of the plaintiff’s duties. As to whether or not an agreement existed, whereby the defendant charged himself with the repayment of these disbursements, and as to the amount agreed upon as compensation for the plaintiff’s services during the week for which compensation is here claimed, there is a direct conflict of fact upon which a finding either way might have been made, but that the determination below upon such evidence will not be reviewed upon appeal is the well settled rule of this court. It is contended, however, that this action should have been brought against the “Sporting World Go.” of which the defendant is president, and in which capacity it is claimed that the agreement with the plaintiff was entered into by him. There is no evidence that the plaintiff was employed under any representations as to the agency of the defendant and the justice properly decided the motion to dismiss the complaint upon this ground. It is elementary that an agent who fails to disclose his principal is liable personally to the party with whom he contracts. Mills v. Hunt, 20 Wend. 431. Again it is urged that the plaintiff could well have discovered the existance of the defendant’s principal from a perusal of a certain portion of the newspaper upon which he was employed, but it is not sufficient that the true principal might have been discovered by the party contracting with the agent; actual knowledge is necessary, Cobb v. Knapp, 71 N. Y. 348, 352, and the evidence fails to show any such knowledge on the part of the plaintiff in this case. In the case last cited the court say: “ There is no hardship in the rule of liability against agents. They always have it in their own power to relieve themselves, and when they do not it must be presumed that they intend to be liable.” The recovery is fully supported by the evidence, and no error appearing from the record, the judgment should be affirmed, with costs. All concur.


author: Daly, C. J.

text:
    Union Stove Company, Resp’t, v. William H. Arnoux, App’lt.

      (New York Common Pleas, General Term,

      Filed April 2, 1894.)

    1. Contract—Approval.
    Approval of all work and materials, like consent may be express, implied from the conduct of the party, or may he tacit.
    2. Evidence—Parol.
    Where the writing assumes to give the whole contract, it cannot be varied by parol on the part of the subscribing party.
    3. Appeal—Irrelevant issue.
    A party, who first injects an irrelevant issue into the case, cannot complain on that ground.
    Appeal by defendant from a judgment of the general term of the city court affirming a judgment in favor of the plaintiffs, entered upon the verdict of a jury for $1,026 ; also appeal from affirmance of the order denying the motion for a new trial. The action was to recover the agreed price of forty ranges with boilers and attachments, to be set and connected complete in two apartment houses in Ninety-eighth street, in the city of New York, and the plaintiffs recovered the full amount claimed. The contract of defendant upon which it is sought to hold him is in writing and is as follows:
    New York, January 21, 1891.
    Wm. H. Abnoux, Esq.,
    Dear Sir: — The bearer represents the Union Stove Works from whom I have bought the ranges and boilers. He wishes to satisfy himself that it is all right.
    40 boilers and ranges.
    $840. ■ Yours &c.
    John D. Phyfe.
    Jos. Campbell must approve and on such approval and delivery of goods I will pay cash forthwirh.
    Arnoux, Bitch & Woodford (Wm. B. Arnoux, of counsel, for app’lt; Phillips & Avery, for resp’t.
   Daly, C. J.

The plaintiffs allege that Joseph Campbell approved contract furnished and performed by them, and this was denied by defendant. It was conceded that the goods and work complied with the contract and it is a fair inference from the evidence in the case that Joseph Campbell saw the work and approved of it. He was the brother of one of the firm of builders, Phyfe & Campbell, who were erecting the houses. He was a kind of “ boss around, foreman or something ” according to the testimony of the witnesses. According to the testimony of defendant’s witness, George T. Arnoux, who was the brother of the defendant and the book-keeper •of Phyfe, Joseph Campbell approved of bills, if he, Arnoux, said it was all right; and Joseph Campbell was at the building about •every day. Joseph Campbell swears that he never saw these ranges go into this defendant’s property; but it appears from defendant's own testimony that Campbell knew that defendant had entered into the contract, for they conversed about the ranges at that time; also that the general course was that Campbell would look at the work and bring the approval to the defendant, or else deliver them to the party. It also appeared that after the work was done the plaintiff’s agent, the defendant, Mr. Phyfe and Joseph Campbell met in defendant’s office; that the plaintiff’s agent came there to get the approval from Joseph Campbell and the latter at the suggestion of defendant agreed to meet the parties the next morning at nine o’clock, but never came.

Approval, like consent, may be expressed, or may be implied from the conduct of the party, and it may be tacit. It was established by defendant’s own testimony that Campbell knew of the contract. If he disapproved of it, it was easy for defendant to say .so, and being silent upon that point we must deem it established that Campbell approved of the purchase of the goods and of defendant’s agreement to pay for them, Prom the other evidence in the case, the jury might fairly infer that Campbell saw the goods and work and approved of both. He made no particular personal investigation for himself, but relied upon George T. Arnoux’s approval; he was at the building every day and he made an appointment with the plaintiff’s agent to meet him there and examine the work. His failure then, or at any time, to intimate the slightest disapproval, warranted the jury in finding that he did approve. The allegations of the complaint were therefore sustained. The defendant claims, however, that the approval of Campbell was to be in writing, and offered to show that the conversation between him and the plaintiff’s agent, at the time he signed his agreement to pay, established that fact. The defendant’s evidence on that point was excluded, and we think properly as it tended to vary the written agreement. The defendant drew up his stipulation .and must be deemed to have inserted in it all that was material. Whatever in the conversation which had been testified to by plaintiff’s agent, implied an approval in writing, is wholly immaterial since defendant had not chosen to make a stipulation for a writing a part of his agreement. He inserted the sole condition upon which he agreed to pay. To add any other, or further, condition is to alter his own contract. There are cases where the contract of one party is in writing and the contract of the other party rests in parol and may be proved by parol. Routledge v. Worthington Co., 119 N. Y. 592-6; 30 St. Rep. 195. But where the writing assumes to give the whole contract between the parties it cannot be varied by parol evidence offered ■on the part of the person who subscribed it. Gerard v. Cowperthwait, 21 N. Y. Supp. 1092 ; 50 St. Rep. 592. In this case the defendant wrote out the whole contract as he wished it to appear at the time, arid no further stipulation can be added to it. Boris there any ambiguity in the writing. It means but one thing; that Joseph Campbell must approve. Whether his approval is to be evidenced by a writing or not, is not a question arising upon the language of the instrument. The contract is not ambiguous because it failed to state by what evidence the party was to prove ■compliance with the condition. Ground for reversal is alleged in the error of trial judge in submitting to the jury to say “was there such an approval as would be necessary in order that the plaintiff may obtain a verdict.” Ho exception to this statement is in the case and we, therefore, cannot reverse for the error. That there was no exception is doubtless because the expression which the judge used was inadvertent and made no impression at the time upon counsel or jury from the fact that he had previously charged the jury that they were to determine from the evidence whether Joseph Campbell had approved or not. Had his attention been called to the matter he would have had an ■opportunity to correct the expression. Hone of the exceptions taken by defendant requires a reversal. The motions to dismiss were properly denied because there was express evidence of Joseph Campbell’s approval of defendant’s contract and evidence from which his approval of the work might fairly be inferred. It appeared from the testimony of defendant’s witness, Joseph Campbell, that a demand for the approval of the ranges was made on him when he came into court the morning of the trial. Ho objection to this testimony was offered by defendant, nor does it appear that it was drawn out for the purpose of fixing thereby liability on defendant. The latter, however, asked the judge to charge that it was not a proper demand, and, if it was the only demand made on Joseph Campbell, the jury must render a verdict for the defendant. This was declined and defendant excepted. The request could not have been granted. A demand upon Joseph Campbell for approval was not essential to plaintiff's recovery. It was only necessary for them to show that Campbell had approved, l^e do not consider that the other exceptions alluded to in appellant's belief, point out errors for which the judgment should be reversed. The defendant complains of the instruction given at plaintiff’s request just before the jury retired, that if the demand was made of Joseph Campbell and he agreed to go to the buildings to examine the work, his neglect to do so was unreasonable, and the jury must find for the plaintiff; and two subsequent instructions on the same subject. The question of unreasonable refusal to approve was not the issue presented by the pleadings. Plaintiff insists that the complaint was amended to conform to the proof in the case. It appears" that after the denial of the defendant’s first motion to dismiss the complaint the court said: “ The pleadings, if necessary, to be amended to conform to the proof.” Defendant denies that any amendment was actually made, in which we agree with him ; for plaintiff did not then nor subsequently ask for any; and so no error was committed by which there was a substitution of a new cause of action. But at the close of the whole case the defendant treated this new cause of action as in the case, for he added to his former grounds of motion for a dismissal: “Fifth. That no reasonable effort has been made by plaintiff to obtain the approval of Joseph Campbell and subsequently, by his own requests for instructions, had that issue submitted to the jury; so that if there was another and irrelevant issue left to them, or if the cause was tried upon a wrong theory, as defendant now claims, or upon inconsistent theories, he is as much to blame as the plaintiff, for he first injected the irrelevant issue into the case. We affirm the judgment because we find sufficient evidence to sustain the verdict upon the ground that Joseph Campbell approved; and if the issue were as to his unreasonable refusal to give an express approval in writing, or otherwise, the plaintiff must be deemed to have sustained the affirmative by a preponderance of evidence.

Judgment and order affirmed.

All concur.


author: Halt, C. J.

text:
    John L. Hamilton et al., Resp’ts, v. James J. Coogan et al., App’lts.

      (New York Common Pleas, General Term,

      Filed April 2, 1894.)

    1. Contract—Building—Construction.
    The words “ cost of labor and materials” in a building contract were construed to mean the charge of the several contracting mechanics for the portion of the work done by each, and his profit upon what he paid his workmen, and the price of the material they used.
    2. Mechanic’s lien—When secured.
    As between the contractor and the owner, the lien is effected when the proper notice is filed and is not affected by the failure to serve notice of claim upon the owner.
    Appeal from a judgment of this court, in an action to foreclose a mechanic’s lien, upon the premises 225-7 Sixth avenue, finding due to the plaintiffs a balance of $65,122.83, upon their contract with the defendants to erect and finish a building upon the said premises.

      A. á> L. Levy (Christopher Fine, of counsel), for app’lts; Abner C. Thomas, for resp’ts.
   Halt, C. J.

The plaintiffs agreed to erect a building for the defendants and to receive “for such work as compensation the cost of labor and material used therein and 10 per cent, added thereto as profit.” The plaintiffs did the carpenter work at a cost for labor and materials of $18,193.30, but the other portions of the work they sublet to various contractors, whose bills amount to $93,294.57; and plaintiffs whole demand was the total of these two sums, being $111,487.87 with 10 per cent, added thereto, $11,148.78. The defendants resist this claim upon the ground that the bills of the sub-contractors include the profits of the latter in addition to the cost of the labor and materials furnished by them respectively; and they instance the sub-contract of Wills, for the mason and stone work, in which the plaintiff agreed to pay Wdls the cost of labor and materials, with 10 per cent, added for profit; the very contract which the plaintiffs made with these defendants. Wills charge for labor and materials is $42,250.62 and his 10 per cent, is $4,225.06 making his total bill $46,475.68, upon which plaintiffs claim 10 per cent, or $4,647.56, thus charging the defendants with 10 per cent, on the labor and materials of the mason work twice over. The other sub-contracts do not present the point of contention as sharply as the Wills contract, but it is indisputable that each contractor has charged not only what he paid for labor and materials but his customary profit in addition thereto ; and the question for our determination is whether the plaintiff shall be allowed the amount of these subcontracts as “the cost of labor and material.” The plaintiffs contend that defendants themselves have construed their agreement in conformity with the plaintiffs’ view by recognizing the employment of sub-contractors; having recommended one party to plaintiffs, with a request to give him an opportunity to figure upon the plumbing work, and having ex. pressed a wish that Wills should do the mason work. Defendants claim that this was not inconsistent with their contract and in no wise bound them to pay more than the stipulated'price, viz: the cost of labor and material. What is a reasonable construction of the contract must be gathered from the circumstances of the case, the work to be done and the usages of business as known to both parties. This was a contract for the taking down of an old structure, excavating for a new one and erecting a large and costly building, which required the co-operation of a number of different trades and the whole work was to be completed within a comparatively short period. The custom of apportioning building work among persons engaged in the several trades was known to and recognized by defendants, and is so generally understood that unless the contrary appears we must consider that the parties entered into this contract with the understanding that that course was to be pursued. It is not pretended that defendants understood that the plaintiffs were masters of all mecimnical crafts, or were to attempt to erect the building without the assistance of experts in the several trades; that they were to purchase material at first cost, hire the laborers and produce a completed structure, the mechanical execution of which in every department, should be as perfect as if each department had been under the charge of competent contractors. It is more reasonable to conclude that what the parties intended by the cost of labor and material, was the actual charge of the several contracting mechanics for the portion of the work done by each, and his profit upon what he paid lus workmen, and the price of the material they used, as it represented the necessary expenses • of supervision and skill in directing and performing the work in a workmanlike manner, and the maintenance of facilities for the proper performance of his" contract. Thus Wills’ 10 per cent, represented his own supervision over the mason work, the proportional expenses of his shop, employees etc. and was as much a part of the actual cost of labor, and materials as the wages of his foreman ; and was necessary in order that the mason work should be executed by a competent expert in that trade. Were the plaintiffs to go into the market and purchase material, they would still be paying a profit to the dealers, and yet it cannot be pretended that, in order to save this expense to the defendants, they were bound to manufacture such material themselves; and if they hired laborers and set over them competent superintendents, it would not be contended that they had to pay the compensation of the latter out of their own percentage. The common understanding of the cost of labor and material in' the erection of such a structure as'was contemplated in the contract of the defendants in the customary charge of contractors for doing such work and furnishing such material. The 10 per cent, to be paid to the plaintiffs was simply a means of confining the whole expense of erecting the building to a certain percentage upon the actual cost of each of the several portions of the work, and to fix a limit upon the plaintiffs’ compensation ; and not to provide a novel and extraordinary method of erecting a large building. In this view of the contract the case was properly tried and the evidence developed that the several portions of the work were done at a fair and resonable price, and that the plaintiffs were entitled to recover as claimed. No error is pointed out by the exceptions which requires a new trial. The court correctly ruled that as between the contractor and the owner of the property the lien was effected when the proper notice was filed and is not affected by the failure to serve notice of claim upon the owner. Kenney v. Apgar, 93 N. Y. 539; Kelly v. Bloomingdale, 139 N. Y. 343 ; 54 St. Rep. 620. The case of the Cream City Furniture Co. v. Squier, 2 Misc. R. 438 ; 51 St. Rep. 118, does not hold the contrary. The decision in that case concerned only the insufficient verification of the notice. The judgment is affirmed, with costs. All concur.


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

text:
    Alice Watson, Resp’t, v. John H. Russell, App’lt.

      (New York Common Pleas, General Term,

      Filed April 2, 1894.)

    1. Damages—Breach of contract.
    A sum stipulated in a contract as the price of the privilege of cancelling it, is not the measure of damages upon a breach of the contract.
    2. Same.
    The measure of damages, in case of breach of contract of employment, is the amount of salary for the entire term of employment, less what has been earned or might have been earned otherwise.
    Appeal from judgment of general term, city court, affirming judgment on verdict, and order denying new trial. Action for damages for breach of contract of employment. The verdict awarded plaintiff the stipulated salary for the entire term" of employment, less what she had otherwise earned. Other essential facts appear in the opinion.
    • Vanderpool, Gunning & Goodwin (Henry Thompson, of counsel), for app’lt; Van Duzer & Taylor (Thomas Fenton Taylor, of counsel), for resp’t. °
   Pryor, J.

Whatever the form of the complaint, the action is for damages for breach of a contract of employment.’ Howard v. Daly, 61 N. Y. 362. A repudiation of an agreement before or at the time of performance, constitutes a breach of it, sufficient to sustain an action, Bunge v. Koop, 48 N. Y. 225 ; Frost v. Knight, L. R., 7 Exch., 111. The judgment below is conclusive as to the contract and the breach; and the only question we are to solve is : What was the measure of damages ? We are unable to distinguish the case in principle from Fisher v. Monroe, 2 Delehanty, 326 ; 51 St. Rep. 585. The circumstance that there the plaintiff had entered on performance, while here the plaintiff was forbidden performance, is surely insignificant; since in either case the action proceeds on the contract, and, in the absence of an agreed compensation for the breach of it, the law adjudged the rule of damages. Howard v Daly, supra. The contention of the appellant is, that his contract stipulates the measure of damages for its breach, and restricts the recovery to the amount of two weeks’ salary. It reads : “It is further agreed that the said John H. Bussell may cancel this contract at any time, on giving the party of the second part one week’s notice and paying one week’s additional salary ; and in consideration of such additional week’s salary the party of the second part agrees to accept one week’s notice of cancellation at any time." Is the case within the terms or intent of this stipulation ? Indisputably not. A breach of a contract is not a cancellation of a contract; one party breaks it, both parties cancel it. Here the condition of cancellation is one week’s notice and payment of two week’s salary. But, no notice was ever given by the defendant and no notice every accepted by the plaintiff. So clearly the contrary, that the defendant both in his complaint and at the trial stood solely upon the ground that he had never made the contract with the plaintiff. How, then, can he avail himself of a provision in an agreement which he disclaims and the obligations of which he disavows ? But, it is said the law fastens the contract upon him. True enough; but the contract to which the law holds him is the contract which he made, and that authorizes him to cancel it only on notice and payment of the partial salary to the plaintiff. Since he never gave, and she never accepted, the one week’s notice; since he never paid, and she never received, the two weeks’ salary, there could be, and there has been, no cancellation of the contract. The one week’s notice and payment of the two weeks’ salary were, we repeat, the stipulated condition of defendant’s exoneration from further liability under the contract; and defaulting in that, he is bound by the contract in all its obligations, one of which is, upon its breach, to pay plaintiff what performance of the contract would have been worth to her; i. e., the salary for the entire term of employment, less what she did earn or might have earned otherwise. Howard v. Daly, supra. In short, payment of the two weeks’ salary was the price of the privilege of cancelling the contract; not the stipulated compensation for its wrongful breach. There being no escape from this conclusion, the position is assumed that after his breach of the contract by refusing the employment he promised, the defendant might still have given plaintiff the stipulated notice and have paid her the stipulated two -weeks’ salary, and so might have reduced the amount of recovery against him. It is an all-sufficient answer to the argument that, in fact, the defendant did not give the notice, and has not paid the salary; and so has not limited the recovery pursuant to the provision of the contract. The law of one case is not affected by 'the law of another and totally dissimilar case. The relations of a party to a contract which he has fulfilled, are not identical with his relations to a contract which he has violated. Had the defendant taken the plaintiff into his employment as he agreed, he might have discharged her on a week’s' notice, with payment of two weeks’ salary, as she agreed; but he refused' ■ to accept her offer of service; and so, by his own wrong, he lost the right to give the notice and reduce the recovery. Furthermore, to this moment the defendant has neither paid nor tendered the two weeks’ salary—payment of which was the prerequisite to his right to cancel the contract-—and yet he asserts a privilege and an immunity which he could only claim upon a rescission of the contract in conformity with its conditions. But, be the reason and justice of the case as it may, it is answered, that the law is settled otherwise by authoritive adjudication. In England, doubtless, but upon a principle peculiar to the domestic and social economy of that country. Gordon v. Potter, F. & F. 644; Robinson v. Hinman, 3 Esp., 235; Fewings v. Tisdale, 1 Exch., 295. Neither Peverly v. Poole, 19 Abb. N. C., 271, nor Parry v. American Opera Co., 19 Abb.N. C., 269; 9 St. Rep., 521, touches the question in dispute, and no other American adjudication is cited for the appellant, except Fisher v. Moore, supra. If the point ruled in that case had been necessary to the determination, it would be conclusive of the question before us. But, the reversal of the judgment, as stated in the opinion, was unavoidable for errors in the exclusion and admission of evidence; and hence, the decision has not the effect of stare decisis. On reconsideration of the point involved, our conclusion is that the law is with the respondent.

Judgment affirmed, with costs.

Bischoff, J., concurs.

Bookstaver, P. J., dissenting;

I cannot concur as I believe the true rule, in such case, is laid down in Fisher v. Monroe, 2 Misc. 326; 51 St. Rep. 585.


text:
    August Marshall et al., Resp’ts, v. Eisen Vineyard Company, App’lt.

      (New York Common Pleas, General Term,

      Filed April 2, 1894.)
    Contract—Where consummated.
    An absolute acceptance of an offer in its exact terms, is indispensable to the formation of a contract.
    Appeal from judgment of general term, city court, affirming judgment on verdict. The opinion states the case.

      Douglass & Minton, (John B. Adger Mullally of counsel), for app’lt; Rose & Putzel (Gibson Putzell, of counsel,) for resp’ts.
   Pryor, J.

The action is for damages for breach of an executory contract to sell a car-load of sherry. The answer denies the contract; and, whether there was a valid contract is the question for decision. To the validity of the contract a memorandum of its terms was requisite under the Statute of Frauds; and such memorandum the plaintiffs contend is furnished by the following series of telegrams between the parties: On June 27th, the plaintiffs, in New York, wired the defendants in San Francisco, “Will you ship us one or two car loads of Sherry?” On June 28, the defendants answered, “Can furnish one, perhaps two cars sherry at fifty-two and a half cents per gallon, including cooperage, against thirty days acceptance;” to which, on June 29, plaintiffs replied: At prices quoted, former terms, you can ship two cars by Sunset route.” On June 30, defendants wired, “Price is net 52, 1-2 cts., without any rebate; if you understand it that way, answer.” On July 1, plaintiffs replied, “If you cannot do better, will accept your terms and price, ship Sunset, one dollar rate.” Finally, on July 5, defendants telegraphed, “Cannot accept your order for sherry, parties holding refusal of sherry before arrival of your order have taken it.” It is elementary law that to the constitution of a contract the consent of the parties is indispensable; and the consent must be to the same thing at the same time consensus ad idem, Broom’s Com. on Common Law, 252 ; Bishop on Contracts, § 313 ; Pollock on Contracts 400. So that, “a mere offer, not accepted, involves no concurrence of wills, and can never constitute a contract.” Bishop on Contracts, § 321. And, “ though there is an acceptance, if it is not to the exact thing offered, or if it is accompanied by any conditions or reservations, however slight, in time or otherwise, no contract is made. It is the same where new terms are introduced; they constitute an offer on the other side, and leave the question open. Bishop, § 323. These fundamental principles in the formation of contracts-suffice to determine whether an obligatory engagement between the parties to the action, was consummated by the above correspondence. The direction as to the mode of shipment may be laid out of -view, as not an element of the supposed contract.

Manifestly, an obscurity lurlcs in the words “ former terms ” in the telegram of June 28. What term? Clearly, the parties had in mind previous conditions in bargains between them; &nd these '“former terms” nowhere appear in the correspondence. The telegram of the 27th, reciting the quantity of sherry to be sold, the price, and the time and method of payment, embodies all the essential stipulations of a contract of sale. And yet in purporting to accept the offer, the plaintiffs interpolate the further conditions that their acceptance is dependent also on “former terms.” What those terms may be, is not indicated by the defendant’s reply, which merely restates-the price by a more explicit expression; nor by plaintiffs’ response, which accepts “terms and price.” Nor, again, is it possible to collect from the correspondence, whether the sale .was of one or two car-loads of sherry. .The plaintiffs’ offer was to buy one or two car-loads. The defendant’s offer was to sell one, perhaps two carloads. The correspondence fails to disclose that the parties finally agreed on a sale of one car-load—the contract on which the judgment was recovered. The fact that the complaint contains a count for two car-loads of sherry as well as for one, is a concession that even yet the plaintiffs have not definitely accepted either alternative of the offer. Again, in the-telegram by which the plaintiffs’ claim that they closed and consummated the contract, they say, “if you cannot do better will accept your terms and price.” Not in the definition of lexicographers only but in popular apprehension as well, “if” is a word which introduces a conditional clause; supposing, pro-, vided.” Stormonth, The Century Dictionary—and all others. Plainly, a promise by one to another if the other will do a certain thing, is not absolute but conditioned that the other do the thing. In saying if you cannot do better I will accept your offer, the plaintiffs referred the matter back to the defendants for reconsideration, suspending meanwhile their acceptance of the offer. The construction would be different, had the plaintiffs said, “ as-you will not do better I accept your offer.” At this point the defendants withdrew the offer; and hence no agreement was perfected between the parties. A reversal of the judgment is the-necessary consequence. Judgment reversed and a new trial ordered ; costs to abide the event. All concur.


text:
    Eliza W. White, Resp’t, v. Jose Balta, App’lt.

      (New York Common Pleas, General Term,

      Filed April 2, 1894)

    Appeal—Leave.
    An application for leave to appeal to the court of appeals, must state the question of law it desires to have reviewed ; and that question must he one not only of importance hut which has never been adjudicated by the court of appeals.
    Motion for leave to appeal to the court of appeals.

      Jones & Qovin, for motion ; Olcoit & Olcolt, opposing.
   Pryor, J.

The motion is reprehensible. It asks the privilege of an appeal to the court of appeals, from a judgment of this court affirming the judgment of the district court for a sum less than a hundred dollars. The action was for a month’s rent of a storeroom ; and upon the trial only issues of fact were on controversy. It is not pretended in the moving papers, that the case involves any question of law at all, much less one “ which ought to be reviewed by the court of appeals.” Code, § 191, sub. 3. Does counsel suppose that our highest tribunal is instituted for the purpose of entertaining anew the petty wrangles of the district court ? And, why should we be vexed by such frivolous and futile motions ?

An application for leave to take a cause to the court of appeals, must state the question of law it desires to have reviewed ; and that question must be one not only of importance but which has never been adjudicated by the court of appeals. A proposition which no lawyer will dispute, is not a question of law. Motion denied, with ten dollars cost.

All concur.


author: Per Curiam.

text:
    Henry G. Bicknell, Resp’t, v. Gilbert M. Spier, Jr., App’lt.

      (New York Common Pleas, General Term,

      Filed April 2, 1894.)

   Per Curiam.

The question of law for review is not stated; nor can it be discovered in the moving papers. White v. Balta, 58 St. Rep. 377 (herewith decided).

Motion denied, with ten dollars cost.