author: Bischoff, J.

text:
    Edward Roberts, App’lt, v. John Cullen et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed November 4, 1891.)

    Bill of particulars—Ejectment.
    In an action of ejectment plaintiff was required to furnish a hill of particulars of his claim, “ and of the facts upon which said claim is based.” Held, that the latter requirement was erroneous as requiring him to disclose the evidence by which he will substantiate his claim.
    Action of ejectment. Appeal from an order directing plaintiff to furnish a bill of the particulars of his claim, “ and of the facts upon which said claim is based.”

      Robert Hunter McGrath, Jr., for app’lt; Daniel Daly, for resp’ts.
   Bischoff, J.

We agree with the learned judge at special term that the authority of the court to require one party to an action to furnish to the other a bill of the particular’s of his claim extends to actions of ejectment; and that by means of such a bill the party may be directed to apprise the other of the particular land of which possession is sought to be recovered, and whether his-alleged right to recover possession is derived through grant, devise, descent, adverse possession or estoppel.

The order appealed from, however, goes further. It requires plaintiff to furnish defendants with a bill of particulars of his claim, “ and of the facts upon which said claim is based,” and as-to the language in parenthesis it is objectionable. The language referred to is susceptible of no other interpretation than that the plaintiff is thereby directed to supply defendants with a detailed statement of the means by which he will substantiate his claim of right to possession at the trial. Such a requirement calls for the' disclosure of the evidence and transcends the office of a bill of particulars.

Plaintiff is entitled to prove his right to recover possession by whatever lawful means may be at his command at the time of' trial, and if that right be curtailed by requiring him to furnish the defendants with a statement of the means of his proof to-the preclusion of evidence thereafter discovered, or of means the value as evidence of which was not known to him at the time of-compliance with the order, it is apparent that the hardship resulting to him would be as great, if not greater, than that which could be occasioned to the defendants by surprise at the trial when the indulgence of the court by postponement might, yet afford at least partial alleviation.

The order appealed from should be modified by striking therefrom the words “ and of the facts upon which said claim is-based,” and as so" modified the order is affirmed, without costs.

. Daly, Ch. J., concurs.


source: Caselaw Access Project

license: Public Domain

text:
    Fraser C. Fuller, Resp’t, v. Edward Kemp, Jr., App’lt.

      (New York Common Pleas, General Term,

      Filed November 4, 1891.)

    Accord and satisfaction—Assent necessary.
    Upon presentation of a "bill for professional services for which no rate: of compensation had been previously agreed upon, defendant sent a check for a less amount in the usual form accompanied by a letter stating that it was in full satisfaction of the claim. Plaintiff cashed the check and retained the proceeds, and rendered a bill for the former amount, crediting the amount of the check and insisting on payment of the balance. Held, that this did not constitute an accord and satisfaction, as from the facts there could be no inference that plaintiff at any time assented to a proposition to receive the check in full satisfaction.
    Appeal from, judgment for plaintiff, a physician, in an action brought to recover for professional services, the defense being an. alleged accord and satisfaction.

      R. Floyd Clarke, for app’lt; Henry Thompson, for resp’t.
   Bischoff, J.

The facts, so far as they appear from the agreed statement made for the purposes of the trial, are as follows: Plaintiff, a physician, performed services as such at the request of the defendant, without any express previous understanding as to-the rate of compensation to be charged and paid. For these services plaintiff rendered a bill amounting to $670, on receipt of which defendant wrote to plaintiff expressing surprise at the amount, requesting him to give the matter his attention and to send a corrected bill. In compliance with this request plaintiff rendered an itemized bill, the footing of which was, as before, $670. Thereupon defendant wrote plaintiff as follows: “I enclose my check for $400 in full satisfaction of your claim for professional services against me to date. The deductions I have made have been in the instances when you have charged me five, four and three visits per day at full rates. I trust that you will view the matter in the same spirit in which I do, which is to fix a figure which will be entirely just to you and to myself. I have arrived at the within conclusion only after careful and earnest, thought.” Accompanying this letter was defendant’s check for $400 to plaintiff’s order in usual form and bearing no endorsement indicating that its use by plaintiff was intended by defendant as an acceptance of the amount in satisfaction of the claim for services. On receipt of the last mentioned letter plaintiff again rendered a bill to defendant for the former amount, crediting defendant with a payment of $400 on account and insisting upon payment of the balance.

The check was endorsed by plaintiff and the amount thereof received and retained by him. To plaintiff’s last bill defendant replied by letter as follows: “I forwarded check for $400 to-your order enclosed in my letter of March 13, 1889, upon the express condition therein named, that the same was enclosed as payment in full satisfaction of your claim for professional services against me to date. I do not recognize that you have the right, to retain the amount so offered upon that distinct understanding and yet repudiate the condition of the offer. Either keep the money upon the condition named or return same to me by return mail.” Plaintiff did not return the amount of the check, but brought this action for the balance claimed by him to be due.

Under his defense of accord and satisfaction the defendant relied upon the foregoing facts as a bar to plaintiff’s recovery, and. it was agreed between the parties that for the purposes of that defense the value of plaintiff’s services should be taken to have been $570, and that neither party should be awarded as against 'the other, either the costs of the action or of any appeal from the judgment to be entered therein.

The learned trial judge held the facts insufficient to support an accord and satisfaction and directed judgment in favor of plaintiff for $170, from which defendant now appeals.

The question presented to us for solution upon the facts submitted is not whether the plaintiff may lawfully retain the check and yet refuse compliance with the condition upon which it was tendered, but whether the retention and use of the check by the plaintiff, notwithstanding its conditional tender by the defendant, operated as an acceptance thereof in satisfaction of plaintiff’s demand contrary to his expressed and unequivocal refusal so to receive it.

An accord and satisfaction is the substitution of a new agreement between the same parties in the place of the former one, and the execution of such new agreement by each of the parties thereto on his part, Lawson’s Rights, Remedies and Practice, § 2567, p. 4228; Am. and Eng. Ency. of Law, vol. 1, p. 94, “Accord and Satisfaction; ” Parsons on Contracts, vol. 2, p. 681, § 4; Kromer v. Heim, 75 N. Y, 574, and unless, therefore, the facts present the constituent elements of a valid new agreement the plea of accord and satisfaction is not supported. These elements are parties, subject matter, consideration and assent, Parsons on Contracts, vol. 1, § 3, p. 8, the existence of the last two being denied by the plaintiff.

Were we satisfied that the element of assent is not wanting, we would not hesitate to reverse the judgment appealed from, as the facts conclusively establish a sufficient consideration to support the alleged new agreement. Plaintiff’s demand was for an unliquidated amount and disputed in evident good faith by the defendant, and the forbearance of further dispute furnished a sufficient consideration for the acceptance of less than the sum first demanded. Chitty on Contracts, vol. 2, p„ 1127; Greenleaf on Evidence, vol. 2, § 28; Palmerton v. Huxford, 4 Denio, 166; Baird v. U. S,, 6 Otto (U. S.) 430. So also did the fact that defendant’s tender of a less amount than that claimed to be due was made in the form of his negotiable check import a sufficient consideration, and if it had been accepted by plaintiff in satisfaction such acceptance would have barred a further recovery. Any additional benefit, or even the possibility of a benefit to the creditor, which he receives with the acceptance of less than the full amount of an ascertained debt, in satisfaction thereof, is a sufficient consideration for the agreement to discharge the remainder of the debt. Jaffray v. Davis, 124 N. Y, 164; 35 N. Y. State Rep., 106. Sucia a benefit or possibility of benefit to the creditor will be presumed from the conversion of part of a simple contract demand into a negotiable check, promissory nqte or other security. Goddard v. O'Brien, L. R, 9 Q. B. Div., 37; 21 American Law Register (New Series), 637; Mechanics' Bank v. Huston, Pennsylvania Supreme Court, February 13, 1882, reported in 9 Weekly Flotes of Cases, p. 477; Sibree v. Tripp, 15 M. & W., 26: Green-leaf on Evidence, vol. 2, § 28.

We are, however, of the opinion that the facts fail to show plaintiff’s assent to defendant’s proposition that the check be received in satisfaction of the demand against him, and cannot, for that reason, arrive at the conclusion that the judgment appealed from was erroneously awarded.

“Assent ” is evidenced by a proposition emanating from one side and acceptance of it on the other, the proposition and acceptance together constituting what is sometimes called a “ meeting of the minds.” Was there a “meeting of the minds?” The application of the amount of the check in part payment and his insistence upon payment of the balance, were acts involving an emphatic refutation on plaintiff’s part of defendant’s proposition that the check be accepted in full discharge of his debt. True, assent may sometimes be inferred from conduct, Am. & Eng. Ency. of Law, vol. 3, § 33, p. 858; Wharton on Contracts, vol. 1, § 6, etc., but in the interpretation of a person’s contractual intentions we comprehend conduct to include the aggregation of the acts of a. person respecting the subject-matter of the alleged contract.

It would be manifestly unfair to single out one of a series of acts which standing alone would be indicative of an intention to assent, and to exclude from consideration all other acts which unequivocally point to refusal and unmistakably qualify the former. To do so would require the subjugation of the mind to unconscious acts and to render the latter more potent factors in the determination of a person’s contractual intention than his expressed will. Intention is a mental fact to be ascertained from expression by conduct or words, and it would be no less unfair to predicate a person’s intention upon one of a series of acts together forming his conduct respecting a particular matter to the exclusion of the others than it would be to adopt one or more words of a whole sentence expressing a particular intention as evidence of one in conflict therewith. The acts of endorsing and obtaining the money on the check were not inconsistent with plaintiff’s intention to apply the amount in part payment, clearly expressed by his subsequent act; and considered in the light of that act and his insistence upon payment of the balance, there can be no room for inference that plaintiff at any time assented to a proposition to receive defendant’s check in full satisfaction.

Whether he did so assent, or not, is a question of fact which, like other questions of fact, must be determined upon the evidence, and if the inference of assent arising from the act of retaining the check tendered in satisfaction, abstractly considered, is thereby refuted, the inference is rendered inexistent and the intention will prevail. Day v. McLea, 22 Q. B. Div., 610.

The judgment appealed from should be affirmed, but without costs as per stipulation.

Pryor, J., concurs.


text:
    Wilson J. T. Duff, App’lt, v. Harry Hart, Resp’t.

      (New York Common Pleas, General Term,

      Filed November 4, 1891.)

    Landlord and tenant—Eviction.
    Plaintiff leased the upper portion of certain premises to defendant, restricting the use thereof to the purposes of a florist’s establishment and dwelling. Thereafter he leased the lower portion expressly for the purposes of a public laundry, a purpose for which the building was unfit and which deprived defendant of the beneficial use and quiet enjoyment of the portion leased t'a him. Held, that this constituted a constructive eviction of defendant and entitled him to abandon the premises.
    Appeal from judgment of the seventh distict court in favor of defendant, entered upon the verdict of a jury in an action to recover rent reserved by a lease in writing, to which defendant pleaded his eviction and abandonment of the demised premises before the rent accrued.

      James F. Pendleton, for app’lt; Albert L. Cohn, for resp’t.
   Bischoff, J.

The question presented in the case at bar is whether the defendant was evicted from the premises demised' to him. Plaintiff had let the upper portion of the building Ho. 1236 Third avenue, in the city of Hew York, to defendant, restricting him, however, in the use thereof to the purposes of a florist’s establishment and dwelling. Thereafter he let the lower portion expressly for the purposes of a public laundry. After the laundry was in operation defendant left the premises demised to him before the expiration of his term, and in this action, brought to recover rent which had accrued subsequent to the abandonment of the premises, claimed to have been evicted therefrom.

The justice submitted the question to the jury on the trial, without objection or exception thereto, whether any laundry whatever, and however properly conducted, could be maintained in the basement of the building in question, regard being had to its construction and condition, without' necessarily destroying the tenantability of the remaining or upper portion thereof occupied by the defendant, and whether in fact the maintenance of the laundry did render the premises let to the defendant untenantable. The verdict was in favor of the defendant, and it must be assumed, therefore, that the jury found the building to be unadapted for the purposes of a laundry, and that its maintenance and operation defeated the further beneficial use of the defendant’s premises.

With this finding this court cannot interfere, because by his acquiescence in the charge, deduced from his omission to object or except thereto, the plaintiff has admitted the sufficiency of the evidence to sustain the finding, and whether the laundry constituted a nuisance or not is a matter therefore wholly immaterial for our determination on this appeal. The finding substantially is that, because of its construction and -condition, the building was unsuited for the purposes of a public laundry, and that its maintenance in the basement was incompatible with the further use of the remainder of the building for other purposes. There is, it is true, no implied warranty on the part of a landlord that the premises let are fit, or will remain fit, for the particular purposes to which the tenant may wish to apply them, but there is implied in every lease a covenant on the part of the landlord that during the term agreed upon the tenant shall have the quiet enjoyment of the premises demised. While this covenant does not operate to render the landlord liable for the acts of strangers, it is, however, violated if the landlord either by the omission to perform some duty devolving upon him respecting the demised premises, or by his direct or indirect interference therewith, so alters the condition thereof that the premises become unfit for the purposes to which they might or could have been applied at the time of the letting. The landlord’s agreement is substantially that he will not do, or cause to be done, anything by means of which the tenant will be prevented from using the premises for any intended lawful purpose, West Side Savings Bank v. Newton, 76 N. Y., 616; Koehler v. Scheider, 15 Daly, 198, 204; 23 N. Y. State Rep., 68 ; Tallman v. Murphy, 120 N. Y., 345; 31 N. Y. State Rep., 483, to which they could or might have been applied at the time of letting.

A case parallel with the present, and which will serve to illustrate how the tenant’s eviction may be effected by the landlord by means not amounting to the creation of a nuisance and yet so completely altering the condition of the premises demised that their continued beneficial use and enjoyment is determined, is that of Denison v. Ford, 7 Daly, 384. There the tenant had hired “ stand Mo. 46,” in a building owned by the landlord and let and used for market purposes. Subsequent to the lease the landlord discontinued the use of the building for such purposes, induced other tenants to surrender their stands, and extinguished the lights and closed the doors excepting such as were near the tenant’s stand. The tenant thereupon abandoned the stand and brought' suit to recover damages for his alleged eviction. It was held that the acts of the landlord amounted to an eviction of the tenant and that the latter was entitled to recover.

In the case now submitted to us the establishment and maintenance of a public laundry in the basement of the building upon the plaintiff’s authority and with his consent, and because of the unfitness of the building for such purposes worked such a change in the condition of the premises let to the defendant that the uses to which he could have applied them at the time they were let to him were prevented, and he was deprived of the beneficial use and the quiet enjoyment thereof. Having let the basement for that specific purpose and authorizing and consenting to its use as a public laundry, the plaintiff is chargeable with the results flowing therefrom.

That the business of a laundry man is lawful, and that this particular laundry was as well conducted as any laundry could be, cannot impair the plaintiff’s responsibility for its presence and maintenance in the building. By its operation he effectually deprived the defendant of the use of the premises let to him, and if this did not constitute a case of constructive eviction it would be difficult to determine what would.

The judgment appealed from should be affirmed, with costs.

. Bookstaver, J., concurs.


text:
    Abraham G. Jennings, Resp’t, v. Denis McCarthy, App’lt.

      (New York, Common Pleas, General Term,

      Filed November 4, 1891.)

    1. Summary proceedings—Master and servant.
    Plaintiff employed defendant to take care of certain houses, let, repair and collect rent, for which he was to receive certain commissions and have the use of a floor in one. A t the end of three months the arrangement was terminated, but defendant remained in possession of the floor occupied by him for six months thereafter, and three after notice to quit. Held, that the question whether he was a tenant or servant of plaintiff was properly submitted to the jury.
    2. Same.
    With the termination of the employment the servant’s right to occupy the master’s premises also terminates, and the master has the right to repossess himself thereof; and if the servant remains in possession without molestation it is presumptively with the master’s consent, and if continued beyond a period sufficient to enable the former servant conveniently to remove, such possession is converted into a tenancy at will, determinable by thirty days’ notice.
    3. Same—Tenancy at will.
    An agreement to occupy at the will of either party may be attended with uncertainty of duration, but specifies none the less the time for which it shall continue, and the statute relating to leases in the city of New York cannot apply.
    Appeal from a final order of the ninth district court, awarding possession to the landlord in summary proceedings for the recovery of the possession of demised premises, upon the ground of the alleged expiration of the term.

      A. Prentice, for resp’t; Johnston & Johnston, for app’lt.
   Bischoff, J.

About December 15, 1888, the parties to this proceeding entered into an agreement in writing whereby McCarthy assumed the care of Jenning’s houses, Eos. 1603 and 1605 Lexington avenue, in the city of Eew York, including the letting and repairing thereof and the collection of rents. In consideration of the services to be performed by McCarthy, Jennings agreed to pay him a certain rate of commissions on the amount of rents collected, to make allowance of a specified yearly sum for repairs, to furnish him with the ground floor of one of the houses for janitor’s apartments and to give him the gratuitous use of another floor. Eo time was fixed for which this agreement was to endure, and under it McCarthy entered into the possession of the apartments from which he was sought to be removed. It continued, however, by the voluntary performance of the parties for about three months, and in June, 1889, Jennings notified McCarthy in writing that he had elected to terminate the same. This notice included a demand for the surrender of the possession of the apartments occupied by McCarthy, and was served upon him about three months prior to the institution of proceedings to recover possession and about three months after his employment was discontinued, since which time McCarthy had remained in possession.

Mo sufficient proof of the service of this notice was made upon the trial, but as the allegation of the petition respecting its service was unchallenged by the answer, the fact of such service must be taken as admitted. Norsworthy v. Bryan, 33 Barb., 153 ; People v. Teed, 48 id., 424; McGuire v. Ulrich, 2 Abb., 28.

Upon the foregoing facts the trial justice substantially charged the jury that if they found McCarthy’s possession to be that of a servant their verdict must be in his favor, but if they found his possession to be with the consent of Jennings, and that the relation of master and servant was not subsisting between them, that then the facts established a tenancy at will and Jennings was entitled to recover possession and the verdict should be accordingly. _ • _

_ _ Mo exception was taken to the charge in this form, and the jury having found for the petitioner the appellant urges, as grounds for reversal, that the facts fail to support the verdict, and that the relation between the parties being that of master and servant, and not of landlord and tenant, the trial court was without jurisdiction.

We are of the opinion that the case was properly disposed of in the court below. Whether McCarthy’s occupancy was that of servant or tenant was a question of fact, and therefore properly submitted to the jury.

The facts warranted an inference of consent on the part of Jennings to the continued possession by McCarthy after discontinuance of his employment, and if such consent was found to have •existed, then by operation of law McCarthy’s possession was converted into a tenancy at will determinable under the statute by a previous notice of thirty days, B. S., vol 3, p. 2201, § 7, Banks Bros., 7th ed, and he was subject to removal in summary proceedings to recover possession. Code of Civ. Pro., § 2231.

Substantially the only issue of fact upon the trial was as to whether or not Jennings had consented to McCarthy’s continued possession after his employment was determined, and though there may be no evidence whatever of an express consent it is sufficiently established if inferable from the surrounding circumstances proved.

We may agree with the contention of counsel for appellant that the agreement of December 15, 1888, created the relation of master and servant between the parties, and that as the servant’s possession is that of his master, the relation of landlord and tenant cannot be said to have subsisted respecting the premises occupied by the servant under it while the employment continued in its vitality. With the termination however of the employment, whether by the servant’s abandonment thereof or by his discharge therefrom, the servant’s right to occupy his master’s premises is also determined, and the master then has a present right to repossess himself thereof and to use all necessary force to eject the servant therefrom. Haywood v. Miller, 3 Hill, 90. If the servant continues in possession without molestation, it is presumptively with the master’s consent, and if such possession endures beyond the limit of a period of time sufficient to enable the former servant conveniently to remove, such possession is converted into a tenancy at will. Kerrains v. People, 60 N. Y., 221; Bristor v. Burr et al., 12 N. Y. State Rep., 638.

In the present case the former servant continued in possession for nearly three months after his employment was abandoned or discontinued and before the service of a notice upon him to quit and surrender the possession of the apartments occupied by him, and for three further months thereafter before proceedings for his removal under the statute were instituted, and as under the ruling of the court of appeals in Kerrains v. People, above cited, the master’s consent to the holding over of the former servant may be implied or inferred from the mere fact of delay for a considerable time after the employment has come to an end by the former servant to remove, we are compelled to assume that the jury in rendering their verdict for the petitioner did find the fact of such consent.

The conclusion reached by us that there existed between the parties at the time of the institution of the proceedings to recover possession a tenancy at will necessarily also refutes the appellant’s remaining proposition, that as there was no evidence of an express agreement particularly specifying the duration of the tenant’s right of occupancy, if a tenancy was found to have existed, it must by force of the statute relating to leases of real property in the city of New York, R. S., vol. 3, p. 2200, § 1, Banks Bros. 7th ed., be construed to continue until the 1st day of May next succeeding. An agreement to occupy at the will of either party thereto may be attended with uncertainty of duration, but specifies, none the less, the time for which it shall continue, and the statute referred to cannot for that reason be said to apply. Hart v. McConnell, 5 N. Y. State Rep., 900.

The order appealed from should be affirmed, with costs.

Bookstaveb, J., concurs.


author: Ingraham, J.

text:
    Prosper S. Hewes, App’lt, v. Annie K. Hewes, Resp't

      (Supreme Court, General Term, First Department,

      Filed October 16, 1891.)

    Divorce—Separation—Residence.
    The residence spoken of in § 1763 of the Code is an actual residence of each of the parties, and not the theoretic residence of the wife, which is presumed to follow that of the husband. It is the parties who must he residents of the state to entitle either of them to maintain an action for separation.
    Appeal from judgment entered on report of referee dismissing complaint

      Anson Beebe Stewart, for app’lt; Chas. M. Hough, for resp’t
   Ingraham, J.

To entitle the plaintiff to a judgment for a separation, he must bring his case within § 1763 of the Code.

In this case the parties to this action were married in the state of Pennsylvania, and the defendant has never actually resided within the state.

The plaintiff, however, claims that, as the domicil of the wife follows that of the husband, the residence of the plaintiff within this state made the wife also a resident.

It is clear, however, that the residence spoken of in the section of the Code cited is an actual residence of each of the parties, and not the theoretic residence of the wife which is presumed to follow that of the husband. The language used is in the plural. It is the parties that must be residents of the state to entitle either of them to maintain the action, and the authorities sustain this view.

In Mellen v. Mellen, 10 Abb. N. C., 331, Rumsey, J., says: Where the husband brings his action to dissolve the marriage contract, the theoretic identity of person and interest cease, and the legal fiction of the one domicil no longer operated. The rights of the parties and the jurisdiction of the court must there stand upon the actual existing fact as it was,” and he is sustained by the authorities cited in his opinion. This construction is given to the section of the Code cited in Ramsden v. Ramsden, 28 Hun, 285; Toosey v. Toosey, 14 Daly, 537; 16 N. Y. State Rep., 1021.

We think, therefore, that the plaintiff failed to bring the case within the section of the Code cited, and that the disposition of the case by the referree was correct.

It follows that the judgment appealed from must be affirmed, with costs.

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


author: Per Curiam.

text:
    The Safety Steam Generator Co., App’lt, v. The Dickson Manufacturing Co., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed October 16, 1891,)

    Costs—Extra allowance—Offer of judgment.
    The court has power, in a proper case, to grant an extra allowance where judgment is entered upon acceptance of an oiler.
    Apfeal from an order denying motion for an allowance.

      W. B. Closson, for app’lt; F. E. Smith, for resp’t.
   Per Curiam.

The motion in the court below was denied. It appeared that after issue joined the defendant served an offer of judgment which was accepted by the plaintiffs, whereby defendant offered to allow judgment for a certain sum and costs. « The plaintiff made a motion for an allowance, which was denied by the court because of a supposed want of power.

In this we think the court erred. The case of Landon v. Van Etten, 57 Hun, 122; 32 N. Y. State Rep., 439, seems to be in conflict with this proposition. Although the precise question was not involved, yet it was there held that an allowance was part of the costs, and that a defendant succeeding after an offer, being entitled to costs, was entitled to an allowance. The case of Wing v. De la Rionda, 126 N. Y., 680; 38 N. Y. State Rep., 1009, also establishes the principle that an extra allowance is part of the costs. Therefore, the plaintiff being entitled to costs, the court had power, in a proper case, to grant an allowance.

Our attention has been called to the case of Penfield v. James, 56 N. Y, 659, in which the court seems to have held that where ah insufficient offer of judgment was served, the plaintiff was not entitled to an allowance. We think that either the court must have acted under a misapprehension of the facts or the case must be incorrectly reported.

The order should be reversed,‘with ten dollars costs and disbursements, and the plaintiff allowed to renew his motion at special term. •

Van Brunt, P. J., Daniels and Ingraham, JJ., concur.


text:
    The People ex rel. Charles Putzel, Resp’t, v. John Simonson et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed October 16, 1891.)

    Election—Mandamus—Laws 1890, chap. 563, § 15.
    Section 15 of chap. 563, Laws 1890, does not authorize the court to compel inspectors of election to count votes which they have previously refused to count, although they may have acted erroneously. The remedy in such case is by proceedings under the statute for a new election.
    Appeal from order granting writ of mandamus.

      C. T. Haviland, for app’lts; A. L. Sessions, for resp’t.
   Per Curiam.

We do not think that § 15 of chap. 563 of the Laws of 1890 justified the granting of a mandamus. The section in question is simply a re-enactment of the provisions of the Revised Statutes, and the relief intended by the section was to establish an election already had, or to set aside that election and order a new one, and the proceeding authorized is summary and not by mandamus. There is nothing in that section which authorizes the court to compel the inspectors of election to' count votes which they have heretofore refused to count, although they may have acted erroneously. The only relief which could be afforded where the inspectors had acted improperly would be to order a new election in case justice requires such action. The proceeding for that purpose is prescribed by statute.

The order appealed from should be reversed, with costs of appeal, „and the proceedings dismissed, with twenty dollars costs.

Van Brunt, P. J., Daniels and Ingraham, JJ., concur.


author: Daniels, J.

text:
    Charles P. McCarthy, Resp’t, v. William J. Innis, App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 16, 1891.)

    Costs—Defendant when not entitled to under, § 3234 of the Code. To entitle a defendant to costs under § 3234 of the Code he must recover upon one or more of the issues. It is not sufficient that he obtains a dismissal as to one of several causes of action.

      Appeal from order denying defendant’s motion for costs.

      E H. Berm, for app’lt; Chas. P. McCarthy, in person.
   Daniels, J.

The action was brought to recover damages for the publication of articles alleged to have been lib'elous. Two different articles were set forth, each in a separate division, or count of the complaint. Issue was taken by the answer on each cause of action. And on the trial so much of the complaint was dismissed as contained a statement of the second cause of action. The issue as to the first was submitted to the jury, and a verdict returned upon it for the sum of $400 for the plaintiff. The defendant on this disposition of the action claimed to be entitled to costs. But the clerk refused to adjust his bill of costs, and that was affirmed by the order of the special term, from which the appeal has been taken.

To entitle a defendant to costs under .$3234 of the present Code of practice he must recover upon one or more of the issues. But the defendant did not recover on either issue. What he did was to defeat a recovery on the second issue by the plaintiff. And as there was no recovery in his favor, this section of the Code did not entitle him to costs.

The case of Blashfield v. Blashfield, 41 Hun, 249; 4 N. Y. State Rep., 144, has been presented as in conflict with this construction. And apparently that is the fact. The action there was upon two notes, and the evidence as to one was stricken out for the reason that a recovery upon it was barred by the statute of limitations. And in an opinion which contains a special reference to the previously decided cases it was held that this disposition of one of the causes of action entitled the defendant to costs, although the recovery on the other note by the plaintiff entitled him to costs. And that was affirmed by the general term. But as there was, in fact, no recovery by the defendant and no more than a successful defense as to one of the notes, this decision is not in entire harmony with this section of the code, or with the construction given to it in the earlier case of Cooper v. Williams, 30 Hun, 224. There the complaint contained a statement of twenty-three causes of action for so many different penalties. And the plaintiff recovered for two only. The defendant claimed costs under the same section, but they were denied him. And that was sustained on appeal to the court of appeals. This decision is directly applicable to the present appeal, and is not compatible with the defendant’s claim of costs.

In Ackerman v. De Lude, 36 Hun, 44, the action was for the recovery of the possession of personal property. And upon the trial the plaintiff recovered a verdict for the possession of part of the property, ■while the defendant had a verdict for the recovery of the residue, as that may be proper in an action of replevin. And that presented a case which was within this section, and entitled the defendant to costs, without affording any sanction to the claim of this defendant. The case of Kilburn v. Lowe, 37 Hun, 237, is also an authority against the defendant. And so very plainly are Heath v. Forbes, 18 Civil Pro., 207; Crosley v. Cobb, 42 Hun, 166; 4 N. Y. State Rep., 678; Barlow v. Barlow, 35 Hun, 50, and in its reasoning, the case of Reed v. Batten, 6 N. Y. Sup., 708.

The weight of authority is against the right of the defendant to costs, and so is the language of this section of the Code, rendering it dependent upon a recovery in his favor, which is something beyond defeating the plaintiff upon a separate and distinct cause of action, when he is successful in the residue of the action. The order should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., concurs.


text:
    In the Matter of the Opening of One Hundred and Sixty-Third Street.

      (Supreme Court, General Term, First Department,

      Filed October 16, 1891.)

    Eminent domain—Leave to eíle objections.
    The court has power, in a proper case, to grant leave to a party interested to file objections to the report of the commissioners of estimate and assessment after the time fixed by them in their notice has expired.
    Appeal by the mayor, etc., of New York from an order of special term granting a motion made by Martin B. Brown for leave to file objections to the report of the commissioners of estimate and assessment herein.

      Carroll Berry, for app’lt; James A. Deering, for resp’t.
   Ingraham, J.

The respondent omitted to file his objections with the commissioners until the day after the time required by the notice published by them, and this is an appeal from an order made at special term granting leave to file such objections.

The first question presented is whether or not the court had power to allow the respondent to file the objections after the time had expired.

It seems to me clear that this is a special provision within the provisions of § 3334 of the Code.

By § 3333, it is provided that an action is, an ordinary prosecution in a court of justice by a party against another party for the enforcement or protection of a right, or the redress or prevention of a wrong, or the punishment of a public offense. And by §- 3334, every other prosecution by a party for either of the purposes specified in the last section is a special proceeding.

This proceeding was instituted by the mayor, aldermen and commonalty of the city of Hew York, for the purpose of acquiring the title to certain real estate for use as a public street. Such a proceeding is instituted by the municipal corporation applying to the court on notice to those interested for the appointment of commissioners of estimate and assessment who report to the court, but whose report possesses no validity until confirmed by the court, and that by the confirmation of such report it becomes the judgment of the court, conclusive in its character. In the Matter of Arnold, 60 N. Y., 27; Dolan v. The Mayor, etc., 62 id., 474, where Rapallo, J., says: “The supreme court acquired jurisdiction of the matter by the application of the city for the appointment of commissioners, and all the parties interested had an' opportunity then to litigate the validity of the resolution ordering the improvement. That the proceedings for such assessments are taken before the court, and the confirmation of the report of the commissioners is a judgment pronounced on a full hearing of the parties and conclusive in its character as to all questions litigated or which might have been litigated in the proceeding,” and it was held that this principle precludes a review of the regularity of such a proceeding in an action by the party assessed unless, perhaps, in case of such a fraud or other circumstance as would authorize an action to set aside an ordinary judgment.

This proceeding, therefore, being a proceeding before the court in which its final judgment is a conclusive adjudication upon all persons interested, it clearly falls within the definition of a special proceeding as defined by § 3334 of the Code, before cited, and all the proceedings either before the court or before the commissioners appointed by the court are in court and subject to its control.

That the court has inherent power over its own judgments and proceedings to make such order as j ustice requires to relieve a party from a default or a mistake, and that such power is not limited by the Code, is well settled.

See Hatch v. Central National Bank, 78 N. Y., 489, and cases there cited. But if express anthoritv for such an order was-necessary, it is found in § 724 of the Code, where the court has power to relieve a party from a judgment, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect, and may supply an omission in any proceeding.

In the Matter of One Hundred and Eighty-first street this court, at special term, set aside the order confirming the report of the commissioners and allowed a property owner to come in and file objections to the award.

There the court not only allowed the petitioner to file his objections but set aside the report and order confirming the report sons to allow him an opportunity to be heard.

This order was affirmed by the general term. See 35 N. Y. State Rep., 548.

And by the court of appeals, 126 N. Y., 641; 37 N. Y. State Rep., 961, and is ample authority for the order of the court below.

In this case the objections of the respondent were tendered to the commissioners one day too late, and the affidavits upon which the motion was granted excuses the omission so as to justify the court in relieving him from the default

We think, therefore, the court below had power to grant the order appealed from, and that under the circumstances such power was properly exercised. Order appealed from should, therefore, be affirmed, with ten dollars costs and disbursements.

Daniels, J., concurs; Van Brunt, P. J., concurs in result.


author: Barrett, J.

text:
    The People, App’lts, v. Alexander Meakim et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed October 16, 1891.)

    Criminal law—Former acquittal—Estoppel.
    Where a verdict of acquittal is directed on the request of a defendant upon the ground of variance between the proof and the indictment, he will not, on the trial of a subsequent indictment for the same offense, be permitted to claim that there was no material variance between proof and indictment on the former trial, and that, therefore, the first acquittal was on the merits.
    Appeal from an order made by the court of oyer and terminer arresting judgment on a verdict in favor of the People on the trial of a plea of former acquittal interposed by the defendant.

      Henry B. B. Stapler, assistant district attorney, for the People, app’lts; Richard S. Newcomhe, A. J. Dittenhoefer, Edgar M. Johnson and Edward Browne, for resp’ts.
   Barrett, J.

Upon the face of the record, the plea was properly overruled. The verdict rendered upon the trial under the first indictment was not on the merits. It was directed by the learned recorder because of his opinion that there was a variance between the proof and the indictment The verdict as recorded reads as follows:

“ The jury, without leaving the bar, say they find the defendfendants not guilty on the ground of variance between the proof and the indictment.”

Upon the face of the record, therefore, the case is brought within § 840 of the Code of Criminal Procedure, which provides that: “If the defendant were formerly acquitted on the ground of a variance between the indictment and the proof, * * * it is

not deemed an acquittal of the same offense.” This section was a substantial re-enactment of the law as it existed under the Revised Statutes. 2 Revised Statutes, 701, § 24.

If the case stood upon the record alone, there would, therefore, be no difficulty with regard to the result. We would only have to follow the plain terms of the statute, as was done in Canter v. The People, 1 Abb. Ct. App. Dec., 305. There the plea presented the ground of acquittal on the former trial in the very words of the Revised Statutes, namely: “ On the ground of a variance between the indictment and the proof.” Upon this the court said:

“We are, therefore, admonished by this clear and explicit declaration of the statute that an acquittal upon such ground forms no bar to a trial and conviction upon a subsequent indictment for the same offense. This plain provision of the statute law of the state disposes of the plea in bar interposed by the prisoner, and shows it was properly overruled.”

The distinction between that case and the present lies in the fact that the defendants here dispute the ground of acquittal as expressed in the record and insist that there was no material variance between the indictment and the proof. Their contention is that the learned recorder erred in this regard, and that, consequently, they should now have the advantage of a general verdict of acquittal upon the merits.

Whether the variance referred to was or was not material, we think the defendants cannot • now be permitted to question the position which they took upon that head on the former trial. The record of that trial distinctly shows that the defendants there claimed that the variance was material, that because of its substantial character certain evidence offered by the People tending to show that a license had been duly issued to one Ahrens was inadmissible, and that an amendment which would let in such evidence was not within the power of the court to grant. Having requested the court to rule in their favor in these particulars, and the court having thereupon directed an acquittal upon these very grounds, they cannot now be heard to say that there was no material variance, that the evidence offered should not have been excluded upon their objection, and that the People should have been permitted to proceed with their case. In other words, they must, under such circumstances, take the acquittal as it was directed and recorded; and they cannot now be permitted to go behind the record as it was thus made up. As matter of fact, they were not acquitted upon the merits, and as matter of law their jeopardy ceased when the court held, at their request, that there was a material variance: between the indictment and the proof offered.

The precise question does not seem to have been presented in any adjudged Case, but the general principle is well settled that, in criminal as well as in civil cases, a defendant must be held to the position which he assumes, and upon which he requests and secures a favorable judgment or other personal advantage. This principle, of course, is subject to the limitation that consent cannot confer jurisdiction or waive the procedure required by the constitution. In illustration of this general principle, Mr. Bishop says, 1 Grim. Law, § 1000, that:

“ When the indictment is good, yet the court, supposing it not good, erroneously arrests judgment on the defendant’s application; if the prosecutor may have this judgment of arrest reversed for the error, he cannot maintain a new indictment; because the prisoner is still in jeopardy under the old, which is liable to be revived by a reversal of the judgment of arrest. But in states where the erroneous judgment of arrest cannot be called in question, the prisoner’s jeopardy has ceased, at his own request and for his own benefit, therefore he may be proceeded against anew.”

So in Gerard v. The People, 3 Scam., 4 Ill 362, Treat, J., observed that: “In civil cases parties are never permitted to assign for error decisions of the court made at their instance, or with their consent, and we are aware of no good reason why the rule should not be applied to criminal cases, except in cases where jurisdiction is sought to be conferred upon the court by consent.”

And in King v. The People, 5 Hun, 300, this language was used by Boardman, J. : “ If the irregularity was not fatal to any conviction ■ that might be had, and the prisoner yet insisted upon the defect and objected to further proceedings upon the trial, that was equivalent to asking for the discharge of the jury and consenting thereto. The general opinion is that the •consent of the prisoner to the discharge of the jury will obviate any objection founded on his constitutional privilege.” See also People v. Casborus, 13 Johns., 351; Croft v. The People, 15 Hun, 486 and 487; Commonwealths. Gould, 12 Gray, 171.

We think, therefore, that the plea of formal acquittal was properly overruled, and that the motion in arrest should have been denied.

The other question raised upon this appeal, namely, whether the indictment states facts sufficient to constitute a crime, does not appear to have been presented upon the motion in arrest of judgment.

The sole question then before the court, so far as appears from the record, was whether the defendants had been twice put in jeopardy. We think, however, that the facts alleged in the indictment sufficiently state a crime within § 117 of the Penal Code, and that no special discussion on that head is required. We concur with Judge Martine in the opinion which he delivered upon ■overruling the demurrer interposed by the defendants in the first indictment. See also People ex rel. Welling v. Meakim, 56 Hun, 626; 31 N. Y. State Rep., 928; affirmed 123 N. Y., 660; 34 N. Y. State Rep., 1009 ; People s. Jones, 54 Barb., 311; People s. Brooks, 1 Denio, 457.

The order appealed from should, therefore, be reversed.

Patterson, J., concurs.


author: Van Brunt, P. J.

text:
    The C. B. Keogh Mfg. Co., Resp’t, v. Charles Molten et al., Impl’d, App’lts.

      (Supreme Court, General Term, First Department,

      Filed October 16, 1891.)

    Refebence—Lone account.
    It is not sufficient to justify a compulsory reference that the case may possibly involve the examination of a long account. There must be enough alleged or shown to justify an inference that that will be the course of the .trial.
    Appeal from order directing reference.

      Chas. M. Earle, for app’lts; M. A. Vosburgh, for resp’t
   Van Brunt, P. J.

We do not see how the order in this case can be sustained. In the case of Thayer v. McNaughton, 117 N. Y., 111; 26 N. Y. State Rep., 843, it is distinctly held that a compulsory reference can only be ordered where the trial will require the examination of a long account and will not require the decision of difficult questions of law, and that these facts must be shown to justify the court in ordering a reference against the consent of the other party.

In the case cited there was no evidence before the court when the order of reference was made that the statutory conditions existed upon which the compulsory reference could be ordered, and so with the case at bar. There is an allegation in the answer of •one of the defendants that he furnished .work, labor and materials amounting to a certain sum which he claimed to be a lien upon the premises in question superior to the mortgage, and he asked for a foreclosure of this lien and a sale of the premises to pay the amount due to him. How many items or how long an account this claim consisted of is nowhere stated.

It is true that in one of the affidavits upon which the order of reference was granted the statement is made that the trial of the issues will require the examination of a long account on the side of the plaintiff consisting of several items of charges, but how many items of charges or how long an account is nowhere stated, and, as was the case of Thayer v. McNaughton, it is quite consistent with what appears upon the face of these papers that the debts and payments may be few in number.

It is not sufficient to justify a compulsory reference that the case may possibly involve the examination of a long account There must be enough alleged or shown to justify an inference that that will be the course of the trial. The power of the court being limited, the conditions upon which such power can be exercised must be established. This was not done in the case at bar and the order was therefore unauthorized.

The order should be reversed, with ten dollars costs and disbursements, with liberty upon payment of costs and disbursements of appeal to renew- motion for reference upon proof of length of accounts and that no other substantial issues are involved.

Daniels, J., concurs.


text:
    The Union Distilling Co., Resp’t, v. Henry Ruser, App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 16, 1891.)

    1. Attachment—Service.
    A failure to publish or serve the summons within thirty days after the granting of an attachment is fatal to the continuance of such attachment.
    3. Same—Appearance.
    A special-appearance by the defendant for "the sole purpose of a motion to set aside the attachment is not sufficient to authorize the continuance of the action or of the attachment.
    Appeal from order denying motion to vacate attachment ,

      L. Ruser, for app’lt; S. E. Duffey, for resp’t.
   Per Curiam.

It appears from the papers upon appeal that ■the attachment herein was issued on the 20th of April, 1891, and that there was no publication of the summons or other service of the same prior to the 21st of May, 1891, more than thirty days after the granting of the attachment " This was fatal to the continuance of the warrant, unless the defendant appeared in the action.

It is claimed by the respondent that the defendant-did appear and moved to vacate the attachment It appears, however, from the papers upon appeal, that the appearance was not general, but special and for the sole purpose of a motion to set aside the attachment

, It therefore gave no authority for the continuation of the action,, nor would it have given any for the entry of judgment in case of failure to answer.

The motion to set aside should have been granted, and the order denying such motion should be reversed, with $10.00 costs and disbursements, and the motion granted.

Van Brunt, P. J., Daniels and Ingraham, JJ., concur.


text:
    The Union Distilling Company, Resp’t, v. Henry Ruser, App’lt

      (Supreme Court, General Term, First Department,

      Filed October 16, 1891.)

    Attachment—Publication of summons.
    An order of publication required the summons to be published in three-papers. It was published in two of them on the 30th day after the granting of an attachment, but was not published in the other, the New York Law Journal, until the following day. Held, that the publication was-not commenced within thirty days, and-the attachment fell.
    Appeal from order denying motion to vacate attachment.

      L. Ruser, for app’lt; S. E, Duffey, for resp’t.
   Per Curiam.

The attachment having been granted in this case on the 2d of May, 1891, an order of publication was made on June 1, 1891,'requiring the summons to be published in the Evening Post and Evening Sun and the N. Y. Law Journal. The summons was published in the Evening Post and the Evening Sun on the same day; but was not published in the Law Journal until the following day, more than thirty days after the granting of the attachment The first publication of the summons as required by the order of publication was not commenced within thirty days after the granting of the attachment and the attachment therefore fell. Taylor v. Troncoso, 76 N. Y., 599.

The order should be reversed, with ten dollars costs and disbursements, and the motion granted.

Van Brunt, P. J., Daniels and Ingraham, JJ., concur.


text:
    George S. Ronalds, Resp’t, v. Catharine A. Cammann et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed October 16, 1891.)

    Appeal—Motion to dismiss on trial.
    A motion to dismiss the complaint made on the trial is a part of the proceedings at the trial, and an exception to its denial can only be reviewed on appeal from the judgment, or when ordered heard at general term in, the first instance.
    Appeal from order denying motion to dismiss complaint made at the trial.

      B. T. Kissam, for app’lts; Wm. Man, for resp’t.
   Per Curiam.

Exceptions to proceedings upon the trial can only be reviewed by appeal from the judgment, or when they are ordered in the first instance to be tried at the general term. The motion to dismiss the complaint in this action was a part of the proceedings at the trial and an exception to its denial can, therefore, be only reviewed in the same manner as any exception taken at the trial may be brought up.

There is no authority whatever for the entry of the order from which this appeal is taken, and, therefore, the appeal from that order presents nothing for us to review.

The appeal should be dismissed, with costs.

Van Brunt, P. J., Daniels and Ingraham, JJ., concur.


author: Newburger, J.

text:
    The Broad Street National Bank of Trenton, New Jersey, Resp’t, v. Margaret Sinclair, App’lt.

      (City Court of New York, General Term,

      Filed October 15, 1891.)

    Depositions—Examination of party before trial.
    The object of an examination is not to prevent surprises, but to assist a plaintiff to obtain facts which he cannot learn from other sources which are accessible to him. An examination cannot be allowed to enable plainiff to dispense with the necessity of procuring witnesses to prove facts which may be admitted on such examination.
    Appeal from order denying motion to vacate order for examination of defendant upon trial.

      Lee & Lee, for resp’t; David Leventritt, for app’lt
   Newburger, J.

This is an appeal from an order denying a motion to vacate an order for the examination of defendant before trial.

This action is brought upon a certain draft drawn by James F. Brook on Sinclair & Co., and accepted by them.

The defendant answered, denying that she accepted said draft

It appears from the affidavit of the managing clerk of plaintiff’s attorney that the object of the examination of defendant is: First. To prevent surprise upon the trial. Second. To dispense with the necessity of procuring witnesses to prove facts which may be admitted by said defendant upon examination.

I know of no law or practice that permits such an examination.

The authorities cited by respondent are cases in which it appeared from the papers that the examination was necessary in order to prove plaintiff’s case.

In this case, however, it appears from the papers that not only is the plaintiff prepared to try the case, but names a number of witnesses they propose to call to sustain their case.

The object of an examination before trial is not to prevent surprises, but to assist a plaintiff to obtain facts which he cannot learn from other sources which are accessible to him.

The order must be reversed, with costs.

Ehrlich, Oh. J., concurs.


author: Ehrlich, Ch. J.

text:
    The Bradley & Currier Co., Limited, Resp’t, v. Siegmund T Meyer et al., App’lts.

      (City Court of New York, General Term,

      Filed October 15, 1891.)

    Bills and notes—Evidence.
    In an action against endorsers on a promissory note where the defense is that defendants endorsed to accommodate the maker, to enable him t» procure the cancellation of a judgment held by plaintiffs against him, and that it was given to them without procuring such cancellation, it is error to refuse to allow defendants to prove what was said to them by the maker to procure their endorsement, and that the maker owned property on which such judgment was a lien.
    Appeal from judgment entered on verdict in favor of plaintiff.

      James Dunne, for app’lts; Putney, Bishop & Slade, for resp’t
   Ehrlich, Ch. J.

The defense by the endorsers was that they endorsed the notes to accommodate the maker, to enable him to procure the cancellation of a judgment held by the plaintiffs against the maker, and that it was wrongfully given to them by the maker without procuring such cancellation.

The defendants (the endorsers) undertook to prove what was-said by the maker to the endorsers to procure their endorsement, and the testimony was in several instances ruled out They also' undertook to prove that the maker owned property at the time, on which the judgment was a lien, and this was ruled out We think this was error. It was proved and not disputed that the judgment was not cancelled, so that the condition as to cancellation was material. For these reasons, and without considering the other exceptions in the case, we think the judgment must be reversed and a new trial ordered, with costs to the appellants to abide the event

• Mewburger, J., concurs.


text:
    Selig Steinhardt, Resp’t, v. Oliver P. Buel, App’lt.

      (City Court of New York, General Term,

      Filed October 15, 1891.)

    Landlord and tenant—Renewal op lease.
    In an action for rent it appeared that defendant had refused to renew on the old terms, and negotiations had' been opened looking, to an entirely new agreement. Held, that the question, whether it was consummated was a question for the jury, and that a direction of a verdict for plaintiff was error.
    Appeal from judgment entered on verdict directed by trial judge in favor of plaintiff.

      G. M. Harwood, for app’lt; J. Steinhardt, for resp’t.
   Ehrlich, Ch. J.

The question whether there was a rehiring by the defendant was in conflict, and should have been sent to the jury for their determination.

There is room for doubt whether the terms, conditions and details of the rehiring were settled by the parties so as to give the result the effect of a lease.

The defendant had refused to renew on the old terms, and negotiations were opened looking forward to an entirely new agree: ment, and whether it was consummated was a question which could not be withheld from the jury. The court directed a verdict in favor of the plaintiff, to which the defendant excepted. This error requires that the judgment be reversed and a new trial ordered, with costs to the appellant to abide the event.

Van Wyck, J., concurs.


author: Ehrlich, Ch., J.

text:
    Oliver H. Perry, Resp’t, v. The Erie Transfer Co., App’lt.

      (City Court of New York, General Term,

      Filed October 15,1891.)

    Jurisdiction—Non-resident—W aiver.
    In a transitory action where the complaint does not show and the answer does not object that the defendant is a non-resident the want of jurisdiction is not an issue to be tried, but is waived.
    Appeal from judgment in favor of plaintiff directed by trial judge.

      A. W. Kent, for app’lt; Strong & Cadwalader, for resp’t
   Ehrlich, Ch., J.

It does not appear by the complaint, nor is it objected to in the answer, that the plaintiff was at the time the action was commenced a resident of New Jersey. Such being the case, the want of jurisdiction was not an - issue to be tried. It was waived. Although the defendant is a foreign corporation; the action is transitory, and but for the non-residence of the plaintiff the court would have had jurisdiction of both subject matter and parties. The objection, or grounds upon which it is based, ought to have appeared in some form by the pleadings.

The cause of action was clearly proved and verdict properly directed. It follows that the judgment appealed from must be affirmed, with costs. ■ ’ .

Newbur&er, J., concurs.


author: Osborne, J.

text:
    Lucy A. Kutz, Resp’t, v. Daniel W. Richards and Morton B. Smith, App’lts.

      (City Court of Brooklyn, General Term,

      Filed October 26,1891.)

    Parties—Action by tenant in common for share of profits.
    The complaint alleged that plaintiff’s assignor, defendants and others entered into an agreement to the effect that in the event of any of the bids • offered by each for vessels at a government sale should be accepted, the vessels so purchased would be for joint account of the parties signing the agreement, each paying his share when called on to do so; that the de- . fendants as a firm, one S. and plaintiff’s assignor were each entitled to five-eighteenths interest under the agreement and the firm of.H. & P. to a three-eighteenths; that one of the vessels included in the agreement purchased by defendants has been broken up and sold by them at a large profit; that they refused to recognize the interest of plaintiff's assignor therein, although he tendered his share of the purchase price, and demanded an accounting and judgment for the amount found due. Held, that it did not appear from the face the complaint that S. and the firm of H. & P. were necessary parties, and that a demurrer on the ground of defect of parties was properly overruled.

      2. Sake.
    Where the interests of tenants in common are distinct and readily ascertainable oh an accounting showing the profits, either ténant may demand of his co-tenant having possession of the whole his share, and on a refusal or conversion may sue in his own name, without joining all the other co-tenants.
    Appeal from interlocutory judgment overruling demurrer to complaint

      Winthrop Parker, for resp’t; Merrill & Rogers, for app’lts.
   Osborne, J.

Defendants appeal from an interlocutory judgment overruling a demurrer to the complaint herein.

The complaint, in substance, alleges that Daniel Buhler (plaintiff’s assignor), the defendants, composing the firm of Daniel W. Richards & Co., P. Clancy, Hathaniel McKay, Hubbell & Porter and E. Stannard, having in view an impending sale of certain vessels by the United States government, entered into an agreement in writing, dated September 19, 1883, to the effect “ that in the event of any or all of the bids offered by each being accepted by the government, the vessels so purchased are for the joint account of the parties signing this agreement, each one paying his share of the purchase money when called upon so to do.” The complaint then alleges the assignments by Clancy and by McKay of their interests under said agreement to Richards & Smith, Stannard and Buhler, so that the interests of the several parties under said agreement were as follows, defendants Richards & Smith, E. Stannard and Daniel Buhler each 5-18, and the firm of Hubbell & Porter 3-18.

That one of the vessels advertised for sale by the government, as stated in said agreement and referred to therein, was the steamer “ Floridathat on February 14, 1885, said steamer was sold by the United States to the defendants for the sum of $42,000. That the vessels mentioned in said agreement, including the “ Florida,” were chiefly valuable to break up and sell; that the parties to said agreement lived under it and carried it into effect during several years as to various vessels purchased by them from the government.

That the “ Florida ” so purchased by defendants was included in said agreement, and that by said purchase Buhler became owner of 5-18 -interest therein.

That defendants have refused to recognize Buhler’s interest in the “ Florida ” or her proceeds of sale; that, though not called upon to pay his share of the purchase money of the “ Florida,” Buhler has nevertheless tendered to the defendants his certified check for $21,000, which more than covered his share of the purchase money, which tender defendants refused.

That defendants have broken up' the “ Florida ” and sold the machinery, metal and material thereof, and realized an amount largely in excess of the purchase price. That Buhler, under said agreement, was at once entitled to 5-18 of the net profits of the transaction, and to an account thereof, and that defendants made themselves trustees and agents for him in said transaction, and liable to him to the extent of his 5-18 interest therein. That Buhler has assigned his interest to plaintiff, and she prays for an accounting, and for judgment for such sum as may be found due to her.

The defendants demur for defect of parties, inasmuch as it appears upon the face of the complaint that Elbert Stannard and the members of the firm of Hubbell & Porter are necessary parties to this action.”

The demurrer was overruled at special term and defendants appeal.

The one question for our determination on this appeal is: Does it appear upon the face of the complaint that Stannard and Hubbell & Porter are necessary parties to the action ? A careful examination of the complaint fails to disclose to us that the presence of Stannard and of Hubbell & Porter as parties to this action is necessary to the determination of plaintiff’s alleged cause of action, or that the court cannot completely determine the controversy between the plaintiff and the defendants without prejudice to any possible rights of Stannard or of Hubbell & Porter.

There is no allegation in the complaint that Stannard and Hub-bell & Porter, or either of them, have sought or claimed any interest in the purchase of the Florida, or that they have paid, or offered to pay their share of the purchase money, or that they have any subsisting interest in said purchase, or that they have not been paid any shares of any profits they might be entitled to, nor is any claim made by plaintiff against them. Assuming that they had been made parties to the action, it is difficult to see what defense they would have been called upon to make to the complaint as it now stands.

The learned counsel for the appellants cites several authorities to sustain his contention that in an action relating to personalty all the tenants in common must join. An examination of those authorities shows that this rule only applies where the action is brought against a third person, as for injuries to a chattel, or for its conversion, and it does not apply to an action between two or more tenants in common. The case of Dean v, Chamberlin, 6 Duer, 691, relied on by appellants, is not in point; there defendant was to account to plaintiff and nine others (harbormasters of the port of Hew York) for the fees which defendant was employed by them all to collect for their account, and for which he was to account to them severally, and the complaint alleged the interests of the whole eleven in the fund so collected. In the case at bar, as before stated, the complaint fails to show, upon its face, that the parties not joined have or claim any interest in the proceeds of sale of the “ Florida,” and are necessary parties to the action; if- the complaint alleged such an interest, then the demurrer would be well taken. .

We fail to see any reason why, on the allegations of the complaint, plaintiff may not prosecute her alleged cause of action and obtain an adjudication thereon free from any possible claim of the ■other parties to the agreement. There is no community of interest between her and the other parties ; her share is a distinct and definite interest, readily ascertainable upon an accounting showing the profits, if any, upon the breaking up and sale of the material in the Florida. In such a case each tenant in common may demand of his co-tenant having possession of the whole his share, and, upon refusal- or a conversion by such co-tenant, may sue in his own name, without joining all the other co-tenants. Stall v. Wilbur, 77 N. Y., 158.

Section 452 of the Code of Civil Procedure provides that “ the court may determine the controversy as between the parties before it, where it can do so without prejudice to the rights of others, or by saving their rights; but where a complete determination of the controversy cannot be had without the presence of other parties, the court must direct them to be brought in.” We are of ■the opinion that the above quoted section of the Code is applicable here. So far as the complaint shows, the controversy between the plaintiff and the defendants can be determined without prejudice to the rights of Stannard, or of Hubbell " & Porter; if defendants can show that a complete determination of the controversy cannot be had without their presence, their remedy is to apply under this section of the Code and not by demurrer.

We are accordingly of the opinion that the judgment overruling the demurrer should be affirmed, with costs, with the usual leave to the defendants to withdraw the demurrer and answer, as provided in the judgment appealed from.

Vah Wyck, J., concurs.


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    Alfred R. Page, App’lt, v. James W. Voorhies, Resp’t.

      (City Court of Brooklyn, General Term,,

      Filed October 26, 1891.)

    •1. Pleading—Amendment on trial.
    In an action for commissions on an exchange of real estate, the answer alleged, that commissions were to he paid only in case the exchange was actually consummated; that there was an additional mortgage on the property which defendant was to take, which the other party was unable to pay, and hence the exchange was not made. Held, that the court had power under 8» 723 of the Code, to allow the answer to be amended on the trial by adding an allegation that plaintiff or his clerk did not inform defendant of the existence of this mortgage.
    2. Trial—Requests for verdict—Submission to jury.
    While it is within the power of the court, where the plaintiff asks for the direction of a verdict in his favor and the defendant for a dismissal of the complaint, to take the case from the jury and decide it, yet it is not the duty of the court to exercise that power, especially where there is a decided contradiction in the evidence.
    3. Brokers—Duty to principal.
    A failure on the broker’s part to inform his principal of a mortgage on property which he is buying for him, is not, as matter of law, such a breach of duty as will forieit his right to compensation; but the question is one for the jury to determine on all the circumstances of the case.
    Appeal from judgment in favor of defendant, entered on verdict, aud from order denying motion for a new "trial.

      A. R. Page, for app’lt; C. J. Patterson, for resp’t
   Osborne, J.

This action was brought by plaintiff, a real estate broke]’, to recover a commission of $250 for'having effected a contract of exchange of certain property of defendant for certain property belonging to one Squance. As a result of plaintiff’s negotiations a contract was entered into by which defendant was to convey to Squance certain property at Gravesend, and Squance was to convey to defendant five certain houses on Second street in the city of Brooklyn, each subject to a mortgage of $4,500. The answer set up as a defense that the commission was only to be paid in case the exchange was actually consummated ; that there was a mortgage of $10,000 on Squance’s property, in addition to the five mortgages for $4,500, which mortgage Squance was unable to pay, and that consequently the exchange was not made.

At the trial of the action it appeared that plaintiff, or his clerk, W ard, who acted for plaintiff in the transaction, knew of the existence of the $10,000 mortgage at the time the negotiations for the exchange were going on, but it was a disputed question as to whether he communicated that information to .the defendant.

After the testimony was all in, defendant’s counsel asked leave to amend his answer by setting up the further defense that Ward, acting for plaintiff, did not disclose to defendant the fact that there was a $10,000 mortgage on Squance’s property; the amendment was allowed and plaintiff excepted.

Plaintiff’s counsel, at the close of the case, moved that the court direct a verdict for plaintiff, and defendant’s counsel moved to dismiss the complaint; both motions were denied, and counsel respectively excepted.

The court charged the jury that it was the duty of Mr. Ward to disclose the existence of the $10,000 mortgage to the defendant “If he did not, Mr. Page must suffer for the acts of Mr. Ward, and cannot recover in this action.” The court further charged the jury that if the agreement was that defendant should not be liable for the commission unless the deeds were passed, plaintiff was not entitled to recover, as it was admitted that the deeds never passed.

Plaintiff’s counsel excepted to so much of the charge as declared it to be the duty of Mr. Ward to disclose to defendant the fact that the property was encumbered by the $10,000 mortgage.

Defendant had a verdict in his favor, and from the judgment entered thereon, and from an order denying a motion for a new trial, plaintiff appeals.

As to the first point urged by the learned counsel for the appellant, that the learned judge erred in allowing the defendant to amend his answer, we are of the opinion that the amendment was within the discretion of the court under the provisions of § 723 of the Code of Civil Procedure, and that the discretion was wisely exercised. We cannot see how the plaintiff was in any respect injured by allowing the amendment. All the witnesses, as well as the parties, who had any knowledge on this point, were examined and cross-examined on the trial as to whether the existence of the $10,000 mortgage was disclosed to defendant, and we fail to perceive how plaintiff was surprised or misled by allowing the amendment Bernheim v. Daggett, 12 Abb. N. C., 316; aff’d in Court of Appeals, 84 N. Y., 670 ; Cunliff v. D. & H. Canal Co., 4 N. Y. State Rep., 775.

Nor do we think it was error in the learned trial judge to submit the case to the jury. While it is true that, after plaintiff had moved for a direction of a verdict in his favor and defendant had moved for a dismissal of the complaint, it was within the power of the court to take the case from the jury and decide it, yet we do not understand that it is the duty of the court to exercise that power, especially where, as in this case, there was such decided. contradictions in the evidence.

A different question, however, presents itself on the plaintiff’s exception to that portion of the judge’s charge which declared it to be the duty of the plaintiff, or of his clerk acting for him, to disclose to defendant the existence of the $10,000 mortgage, and that if he failed to do so he could not recover.

While we are well aware that the courts require of a broker the exercise of the greatest good- faith to his principal, and that it is his duty to disclose to his principal all material knowledge that he has relative to the proposed transaction, we cannot say that, as a matter of law, a failure on plaintiff’s part to inform defendant of this mortgage was such a breach of duty as would forfeit any right to compensation.

We think rather it was a question for the jury to decide as to whether a failure to inform the defendant of the mortgage in question was, under all the circumstances of this case, a breach of the duty which plaintiff owed to defendant, after the jury had been properly instructed as to the duty of -the plaintiff in the premises. It by no means follows that, even if defendant had known of the existence of this mortgage, he would have refused to enter into the contract of exchange; the contract provided that the Second street houses were, at the time of delivering the deeds, to be free of all encumbrances, except the $4,500 mortgages, so that defendant would suffer no loss if the $10,000 mortgage was not satisfied before the time arrived to deliver the deeds.

We are, therefore, of the opinion that the learned trial judge erred in that portion of his charge excepted to, and that for such error a new trial should be granted.

Judgment and order denying motion for a new trial-reversed, and a new trial ordered, with costs to abide the event

Van Wyck, J., concurs.


author: Van Wyck, J.

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    Mary P. Wessman et al., Resp’ts, v. The City of Brooklyn, App’lt.

      (City Court of Brooklyn, General Term,

      Filed October 26, 1891.)

    Municipal corporations—Negligence.
    Plaintiffs owned land adjoining a street,across which the surface waters flowed in a natural course. Defendant graded the street above the level and constructed a drain for such waters, which became stopped by the interference of some unauthorized person. It was notified thereof but refused and neglected to repair it and in consequence the plaintiffs’ premises became flooded. Held, that it was the duty of the city to use ordinary care to keep in repair the drain constructed by it, and for a negligent omission to do so an action could be maintained by a party injured.
    Appeal from judgment in favor of plaintiffs, entered on a°decision of the court on a trial without a jury.

      J. W. & C. W. Ridgway, for resp’ts; Almet F. Jenks, for app’lt.
   Van Wyck, J.

Previous to 1876, Thirty-ninth street, Brooklyn, was ungraded, and the plaintiffs were owners of a lot 25x100 feet on the north side thereof, between Sixth and Seventh avenues. There the surface waters flowed in a- natural course, which commenced in the woods back of Forty-fourth street and Seventh avenue, traversed the' land between that place and plaintiffs’ lot, entering the rear thereof, continued through a gulley made by its own action along said lot and across Thirty-ninth street, then ungraded, to the river. This flow of such waters had continued in this way for a great many years. The city had authority of law to grade streets, build sewers, and also to construct drains to carry off surface waters whenever any street was graded. Brooklyn Charter, 1873, title 18, § 1; same in Brooklyn Charter, 1888, title !9, §1

In 1876 the city graded Thirty-ninth street along the front of plaintiffs’ lot and above the level thereof, and also constructed a drain for the purpose of carrying off the surface waters that had for so many years flowed through this natural course, by piercing the embankment, made by the grading of the street, with a drain pipe twelve inches in diameter.. Part of the expense of the same was charged against plaintiffs’ premises. This drain successfully did the work of carrying off such waters, and was kept in repair by the city till March, 1889, when some one, unauthorized by the city or by any adjoining lot owner, dug into the street and broke and stopped this drain pipe, so that water no longer would pass through it The city was duly notified of its condition and warned of the danger of injuries to plaintiffs’ premises if not repaired. Notwithstanding such notice, the city" refused and neglected to repair the same. The water became dammed up on plaintiffs’ premises six to eight feet, flooding their house and causing serious damage thereto, for which this action is brought. The trial court held they were entitled to recover $500, and from the judgment éntered therefor the defendant appeals.

We assent to appellant’s contention that the duty of a city is quasi judicial or discretionary, when a power is conferred upon it to make public improvements, such as streets, sewers, culverts and drains, and for a failure to exercise this power or an erroneous estimate of the public needs no civil action can be maintained. But this does not help the defendant in this case. For it has been equally well settled by the court of appeals that after this quasi judicial or discretionary power has once been exercised and the improvement made, the duty of keeping it in repair so as to prevent it from being dangerous to the public is ministerial, and for a negligent omission to do so an action by the party injured will lie. This was decided in the Mayor v. Furze, 3 Hill, 616, and followed in Wilson v. Mayor, 1 Den., 601; Hutson v. City of New York, 9 N. Y., 168 ; Griffin v. City of New York, id., 461; Mills v. City of Brooklyn, 32 id., 498 ; Barton v. Syracuse, 36 id., 54; McCarthy v. Same, 46 id., 196; Urquhart v. Ogdensburg, 91 id., 71. We think the duty rested upon the city to use ordinary care to keep in repair the drain so constructed by it

Judgment affirmed, with costs.

Osborne, J., concurs.


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    Mary H. Barrett, Resp’t, v. William H. Palmer and Adolph M. Droste, App’lts.

      (City Court of Brooklyn, General Term,

      Filed October 26, 1891.)

    1. Trespass—Damages.
    Defendant Palmer leased from the city certain premises for market purposes for two years from October 7, 1887, with a privilege of renewal, which was exercised by his assignee. In February, 1889, he leased a portion to plaintiff for two years, and she entered and erected stands, but was ejected in April and her property converted by defendants. Held, that the court properly allowed the jury in estimating damages to consider loss of possession of the premises after October, 1889, the expiration of the first lease.
    2. Same—Jurisdiction.
    The premises on which the trespass took place were a portion of the lands included in chap. 355, Laws 1853, over which jurisdiction was ceded to the United States, but the same had been leased to the city for market purposes. Held, that the state courts had jurisdiction of the action.
    Appeal from judgment In favor of plaintiff, entered on verdict, and from order denying motion for a new trial.

      Hirsh & Rasquin, for resp’t; M. L. Towns, for app’lts.
   Van Wyck, J.

The United States .government on October 28, 1884, leased to the city of Brooklyn a certain tract of land for market purposes, and now known as the Wallabout Market. The city of Brooklyn on October 7, 1887, leased a part thereof for the same purpose to defendant Palmer for the term of two years, with the right to renew1 the same. Palmer, on February, 1889, leased a part of the premises so let to him to the plaintiff for the same purpose for the term of two years. Plaintiff took possession thereof and constructed market stands thereupon. It is admitted that the premises in Question were a part of the land referred to in Laws of New York, 1853, chapter 355. But there is no evidence to show how the United States acquired any title thereto, or became the owner thereof. The act of 1853 merely cedes the jurisdiction of the state over these lands to the United States, with certain reservations. It does not cede the lands or the title thereto. The defendants, in April, 1889, ejected plaintiff, who had paid the rent up to July, 1889, from the premises, and converted her personal property, and have kept possession thereof ever since. This action is brought to recover damages for such wrongs. The jury rendered a verdict for $1,520, and from the judgment entered thereupon, and order denying a new trial, the defendants appeal. It is urged that the court erred in permitting the jury to consider, in estimating damages, loss of possession of premises after October 9, 1889, the date of expiration of Palmer’s lease from the city. There is no exception that raises such question, and one of the defendants requested the court to take into consideration loss of possession for a period of thirteen months following that date. But assuming that there was such an éxception taken, it could avail the defendants nothing, for this lease to Palmer gave him the right of renewal, and Droste, his assignee, with notice -of plaintiff’s rights, did actually receive such renewal from the city. The only exception called to our attention that we deem necessary to .further consider is that this court had no jurisdiction of this cause of action, because the acts of trespass complained of occurred upon territory over which chapter 355, Laws ■of Hew York, 1853, ceded jurisdiction to the United States. Article 1, § 8 United States Constitution is invoked to sustain the contention. It provides “ that congress shall have power to exercise exclusive legislation in all cases whatsoever * * * over all places purchased by consent of the legislature of the state in which the same shall he for the erection of forts, magazines, arsenals, dock yards and other needful buildings.” There is nothing to show that these lands were purchased by the United States, arid it has been expressly held if they were not, however -else they were acquired, this constitutional provision does not apply. Chicago, R. I & P. R. Co. v. McGlinn, 114 U. S., 542; Fort Leavenworth Railroad Co. v. Lowe, id. 525. In these cases the court also decides that if the lands are not so acquired by the United States, the following general principle will apply; that when legislative power over territory is transferred by one sovereign to another, the then existing laws of the territory “ continue in force (till abrogated by congress) "" * * to so much thereof as is not used by the United States for its forts, buildings and ■other needful purposes of the federal government” The lands leased to the city of Brooklyñ are not used for any such purposes. Congress has not abrogated the laws of the state in this case. Jurisdiction of this cause of action has not been given to either United States circuit or district court Foster's Federal Practice, 1890, 21, §15; 34, § 25.

This plaintiff can appeal for relief to no other tribunal than the state court It is further held that reservations are valid in a state act ceding jurisdiction to the United States over lands .acquired otherwise than by purchase with the consent of the legislature. It does not appear that these lands were so acquired. Section 4 of chapter 355, Laws of 1853, reserves to the state jurisdiction, if the premises are not used for the purposes for which jurisdiction is ceded. Section 1 recites the cession to be for “the uses and purposes of a navy yard ánd navy hospital.” The lands in question in this action have been let expressly to the city of Brooklyn for “market purposes.” For these reasons we have ■concluded that this court has jurisdiction of this cause of action.

We think the judgment and order ought to be affirmed, with costs.

Osborne, J., concurs.