author: Pratt, J.

text:
    Charles H. Kelly, App’lt, v. Joseph B. Bloomingdale et al., App’lts, and William F. Lawrence et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1892.)

    Mechanics’ lien—Payment acter notice.
    An owner cannot prevent the attaching of a lien by hastening to pay his-contractor a balance due before service of the notice of lien upon him, where he has actual notice of the lienor’s claim both from himself and through his architect.
    Appeal from judgment entered upon report of, referee cancelling the liens of plaintiff, and directing a foreclosure of the liens of defendants Lawrence.
    The following is the opinion of the referee:
    John H. Clapp, Referee.—This action was brought to foreclose two mechanics’ liens upon a balance due to James Barham from John J. Brierley, contractor, upon contracts for building two houses in the city of Yonkers, New York. The houses were being erected upon land held by Lyman G. Bloomingdale and Joseph B. Bloomingdale as tenants in common. The contract for the erection of one house was made with Lyman G. Bloomingdale and for the other house with Joseph B. Bloomingdale. It appeared that the contracts weré abandoned by the defendant Brierley on the 6th day of August, 1890, and liens were filed against the balance due said Brierley, as follows:
    On the 19th day of July, 1890, William L. Lawrence and James Y. Lawrence filed a lien against Joseph B. Bloomingdale’s house for $980.51; on the same day they filed a lien against Lyman G. Bloomingdale’s house for $964.42. On July 29th, 1890, the same parties filed a lien against Joseph B. Bloomingdale’s house for $344.63, and on the same day they filed a lien against Lyman G. Bloomingdale’s house for $77.48. All of which liens were filed prior to the 8th day of August, 1890, the date of filing the liens of James Barham upon which the plaintiff sues herein. Barham’s liens are for $700 against Joseph B. Bloomingdale’s house, and $900 against Lyman G. Bloomingdale’s house. The liens of Barham were assigned to the plaintiff by assignment filed the 3d of November, 1890.
    The contract between Brierley and L. G. Bloomingdale was for $13,700. $1,100 was paid upon this contract prior to any of the liens in this action. It appears from, the testimony of Quick, the architect, who is admitted to be agent of both the Bloomingdales, that in making his certificates under the contracts with Brierley he always certified to an amount of 20 per cent, less than the actual value of the work completed at the date of the certificate. On July 18th, Quick certified that a second payment amounting to $l,o00 is due upon the L. Gr. Bloomingdale house, that a previous payment had been made of $1,100, showing that $2,600, being the sum of these two payments, was 80 per cent, of the value of the work already completed on L. Gr. Bloomingdale’s house, making the total value of such work $3,250. It appears that a payment of $750 had been made in June on account of both the Bloomingdale houses. Apportioning this payment between the two houses in the ratio of the contract price for completing said houses, the amount to be credited to this house is $408.39, and this added to the $1,100 already paid would leave $1,641.61 as the value of the work put upon L. Gr. Bloomingdale’s house which was not yet paid for on July 18th, 1890. The above certificate contains the following statement: “ Notice of claim for lumber has been filed by Lawrence Brothers.” Lawrence testifies that prior to the 18th day of July, 1890, he called upon one of the Bloomingdales at their store in New York and notified them that there was over $1,900 due Lawrence Bros, upon the two Bloomingdale houses, and on the 17th day of July, 1890, Bloomingdale, it appears, wrote the following letter to Quick, their architect and agent, viz:
    “ Mr. Lawrence was in to see us and notified us that Mr. Brierley was very backward in payment, and that he owes Lawrence $1,900 for lumber, and before making any other payment to Mr. Brierley we would like you to get a release from Lawrence Brothers, and we want you to be perfectly satisfied that there are no other payments against the property.”
    Lawrence notified Quick of the balance unpaid on the 19th day of July, 1890. Lawrence Brothers filed their lien against L. Gf. Bloomingdale’s house for $964.42. Notwithstanding the notice which Bloomingdale had personally, and through his agent, Quick, on the 21st day of July, 1890, Bloomingdale, it appears, paid to Brierley $2,630 upon the payment certified to be due him upon both the Bloomingdale houses. A copy of the lien above referred to was posted on the L. Gr. Bloomingdale house on the 25th day of July, 1890. We don’t think that this payment of July 21st can protect Bloomingdale against the above lien in view of the fact that he had ample notice of the claim of Lawrence. The Mechanics’ Lien Law of 1885 is stated to be a remedial statute to be construed liberally, so as to give the relief provided for. Surely it cannot be the law that an owner, after notice of a claim, can hasten to pay his contractor a balance due him, and by so doing prevent a lien attaching, even if it should be held that a payment after filing of a lien, before service thereof on him, would protect him against the lien. So there was subject to the lien filed by Lawrence Brothers on July 19, 189Q, $1,-641.61, which was an amount exceeding their claim. They must be adjudged to have a lien against the house of L. G. Bloomingdale for that amount. Deducting from $1,641.61 the amount of the lien, which is $964.42, there remained due to Brierley, after settling this lien, $676.19, and on the 21st day of July, 1890, and prior to the filing of the second lien of Lawrence Brothers, there was paid to Brierley on these bouses $1,500, making an over-payment to the sum of $823.81. Subsequent to the certificate of the architect of July 18, it appears that $77.48 worth of lumber was furnished for use upon that house, and that labor amounting to $651.74 was performed upon both of said houses, and plumbing of the value of $250 went to both of said houses; apportioning this in the ratio of contract prices of said houses, the amount chargeable to L. G. Bloomingdale’s house is $491.01, which would reduce the overpayment above referred to to $332.80, leaving nothing due the contractor Brierley out of which to pay the second lien, and there will be nothing due with which to pay the lien of the plaintiff on the L. G. Bloomingdale house.
    It appears from the testimony of Quick that on the 18th day of July, 1890, he certified that a payment was due upon the J. B. Bloomingdale house, which, added to the amount of the payments previously made, would aggregate $3,130. Adding to this the twenty per cent, which was withheld under the contract, we find that work had been performed amounting in the aggregate to $3,912.50; deducting from this $341.61, the portion of the $750 payment properly applicable to this house, and $2,000, the amount, of the other payments made upon this house prior to said 18th day of July, 1890, there remained subject to the lien of the defendant Lawrence the sum of $1,570.89 (the same remarks as to the $2,600 payment applying to this house). Deducting from this amount the amount of said lien, there remained due to said contractor the amount of $590.36; but Bloomingdale paid, on the 21st day of July, $1,130 to Brierley, which would make, after payment of the lien aforesaid, an over-payment of $539.52. It appears that after July 18, the date of the certificate aforesaid, lumber was furnished on this building to the value, in the aggregate, of $344.63 ; adding to this $410.73, the proper proportion of the labor of the contractor and of the plumbing materials furnished after said date as aforesaid, we find that there was a balance still due the contractor Brierley of $215.74 on the 29th day of July, 1890, which must be applied upon the second lien of the defendant Lawrence for $344.63, leaving nothing out of which to satisfy the plaintiff’s lien.
    There is no question as to the plaintiff’s right to a judgment against the defendant Brierley. The defendants Lawrence would be entitled to a judgment for a deficiency against the defendant Brierley upon proof that he had served his answer upon said defendant; in default of such proof personal judgment cannot be awarded. I do not think that the defendants Bloomingdale were liable personally to pay anything on account of any of the liens. Judgment should be awarded foreclosing the equity of redemption of the parties to this action in the house of Lyman G. Bloomingdale and his interest as tenant- in common in the land described in the complaint, and directing the sale thereof, and out of the proceeds of such sale there should be paid to the defendants Lawrence Brothers $964.42, with interest thereon from the 19th day of July, 1890, together with one-half of their costs, and the surplus, if any, should be deposited to the credit of this action. Judgment should also be awarded foreclosing the equity of redemption of the parties to this action in the house of Joseph B. Bloomingdale and his interest as tenant in common in the land described in the complaint, and out of the proceeds thereof there should be paid to the defendants Lawrence Brothers the sum of $980.51, with interest thereon from the 19tli day of July, 1890, together with the sum of $215.74, with interest thereon from the 29th day of July, 1890, besides one-half of their costs, and the surplus, if any, should be deposited to the credit of this action.
    The plaintiff is also entitled to personal judgment against the defendant Brierley for the sum of $1,617.83, with his costs and disbursements.
    The liens of the plaintiff herein should be canceled and discharged of record.
    The lien of Lawrence Brothers, filed the 29th day of July,, 1891, for $77.48, should also be canceled and discharged of record.

      Matthew L. Harney, for pl’ff-app’lt; Horwitz & Hershfield, for def’ts-app’lts; James M. Hunt, for resp’ts.
   Pratt, J.

The referee’s opinion is so full that no more discussion is required.

We find no error, and the judgment should be affirmed.

As both parties appeal there should be no costs.

Barnard, P. J., concurs; Dykman, J., not sitting.


source: Caselaw Access Project

license: Public Domain

text:
    Walter J. Donohue, Rec’r, Resp’t, v. Alexander Joyce et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1892.)

    Fraudulent conveyance—Consideration.
    Where a person who is indebted at the time, and has previously disposed of his other real estate, conveys a piece of property to his son for $250 above the mortgage thereon, and uses $243 thereof to pay taxes on said property, which the son shortly afterward sells for an advance of $800, the transaction may properly be held to have been fraudulent as to creditors, and the mortgage taken by the son on such sale be deemed assets of the father for the benefit of such creditors. „
    Appeal by defendants Joyce from judgment in favor of plaintiff, entered upon the decision of the court, after a trial without a july.
    Action by plaintiff, as receiver in supplementary proceedings of Alexander Joyce, to declare a deed from said Joyce to his son to have been made without valuable consideration and to defraud creditors, and to declare the' moneys and mortgage realized from a sale by the son of the property so conveyed to be property of said Joyce and that the same be delivered to plaintiff for collection.

      It appeared that the property in question was worth about $4,000 and was subject to a mortgage for $3,000: that in 1890 said Joyce borrowed $400 from the judgment creditor on whose application plaintiff was appointed, and delayed proceedings to collect by representing that he was about selling his property, and when sold the note would be paid; that he sold his other property, and on February 27, 1891, the conveyance in question to his son was made for a consideration of $3,250 and he used $243 thereof to pay taxes on the premises so conveyed; that in June following the son sold said premises for $4,000, receiving $500 in cash and a $500 purchase money mortgage.
    The court below decided that the conveyance was made to hinder, delay and defraud creditors; that the moneys and mortgage were in equity the property of Joyce, and that said mortgage be delivered to plaintiff.

      Allen Taylor, for app'lts; John F. Brennan, for resp’t.
   Pratt, J.

The evidence is satisfactory that the house and lot was worth $4,000, that is to say, about $750 above the encumbrances.

By the arrangement between the defendants, the father conveyed the property to the son for substantially no consideration; that is to say, the small sum which the son was considered to pay was used by the father to pay the taxes on the place which he had just conveyed to the son.

It is entirely plain that the pretence of a consideration moving to the father was but colorable, and was an effort to so obscure . the nature of the transaction as to" make the property safe from the fáther’s creditors.

The proofs were clear and required the judgment that was given. No exceptions appear in the case. Had exceptions been filed they would have been unavailable, as we find no errors.

Judgment affirmed, with costs.

Barnard, P. J., concurs; Dykman, J., not sitting.


text:
    Mark Hartley, Assignee, Resp’t, v. The Cataract Steam Engine Co., No. 2, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1892.)

    1. Assignment for creditors—Proof of.
    In an action by an assignee for creditors to recover a claim due to liis assignors, the assignment of such claim is properly proved by the production of the general assignment and proof of its execution.
    S. Same—Evidence.
    In such an action it is proper for one of the assignors, who is a witness, to look at the firm books to refresh his memory as to the goods sold.
    3. Sale—Agency.
    Proof that similar goods had been sold to the same person as the ones in question, and that defendant paid for them, is sufficient to show that such person, who had charge of its engine house, was authorized to buy the goods in question for defendant.
    Appeal from judgment of the Richmond county court, affirming judgment of a justice of the peace.

      Action for goods sold and delivered by the late firm of C. M. Pine & Son, brought by plaintiff, their assignee under a general assignment for creditors.
    The goods in question were delivered to one Gorman, who had charge of defendant’s engine house.

      W. J. Powers, for app’lt; De Groot, Rawson & Stafford, for resp’t.
   Pratt, J.

The assignment of the claim in suit to the plaintiff was denied, and the plaintiff proved the fact by producing the assignment and proving its execution.

The witness Pine was one of the assignors and a member of the firm that sold the goods in suit.

It was proper for him to look at the firm books to refresh his memory as to the goods delivered to the defendant. Bigelow v. Hall, 91 N. Y., 145; Raux v. Brand, 90 id., 309.

The witness Pine testified that the goods were sold and delivered to one Gorman, who had charge of defendant’s engine house, and that he had sold similar goods to him before and the defendant had paid for them. It is plain that the defense was purely technical and without merit

Judgment affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.


author: Barnard, P. J.

text:
    Charles A. Johnson, Resp’t, v. Isaac Bernheimer et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1892.)

    Brokers—Commissions.
    Plaintiff was employed by defendants to negotiate for the sale of certain land for a fixed price, and it was agreed that if he could procure a sale to one R., who had been negotiating for it, that his commission would be earned. It being found that the property was too large for one purchaser, defendants consented that plaintiff could arrange a sale to two or more at the same time. Plaintiff brought R. and a member of a firm together, who finally bought the premises at the price fixed. Held, that plaintiff’s commission was earned.
    Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial.
    Action to recover commissions on a sale of real estate.

      Edward D. Bettens, for app’lts; F. P. Trautmann, for resp’t.
   Barnard, P. J.

In March, 1889, the defendants, who owned a valuable piece of property on Newton creek, in Kings county, employed the plaintiff, who was a real estate broker, to negotiate for the sale of the same. The price fixed was $125,000. It was stated that one Reynolds had been negotiating for the property, but that no sale had been reached. It was further stated that if Reynolds could be induced to buy of the plaintiff, the commission upon the sale should be considered earned. The plaintiff did open negotiation with Reynolds. He made an offer, which was refused. It was found that the property was too large for one purchaser, and consent was obtained of the defendants that plaintiff could make sale at one time to several parties for the entire price of $125,000. The plaintiff tried to combine purchasers. He introduced one Davis, of the firm of Cross, Austin & Co., to Reynolds. Reynolds was first made acquainted with the fact that the firm of Cross, Austin & Co. wished to purchase the projierty. Reynolds and Ireland, who was one of the firm of Cross, Austin & Co., finally bought the property for the full sum of $125,000. The jury has found the employment, and that the plaintiff was the efficient cause of the sale, and that the sale was made by the defendants while the employment was existing, and that $1,390.45 was justly earned by the plaintiff thereby.

The verdict is therefore just and fully supported by the evidence, and the judgment should be affirmed, with costs.

Dykman and Pratt, JJ., concur.


text:
    The Board of Commissioners of Charities and Corrections of Kings County, Pl’ff, v. The Board of Supervisors of Queens County, Def’t.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1892.)

    County—Support of prisoners.
    Under a contract made by two counties for the custody and support by the one having a penitentiary of criminals sent to it from the other for a specified compensation, a recovery cannot be had for the support of prisoners convicted of offenses punishable by imprisonment in a state prison, and sentenced to said penitentiary in accordance with law; there being no power in a county to make a contract for the support of such prisoners, who are a state charge.
    Submission of controversy without action.
    The board of supervisors of the county of Queens entered into a contract with the plaintiff in 1887, as follows :
    “ Witnesseth : Whereas, the party of the second part, for and in consideration of the moneys hereinafter mentioned, does agree to receive and safely keep, board and clothe, all such persons as shall be sentenced to be imprisoned by any court or magistrate in the said county of Queens, for any length of time not exceeding five years. All such persons so sentenced to be delivered into the custody of the keeper or warden of the Kings County Penitentiary by the sheriff of the said county of Queens, or by any other officer or constable of the said county of Queens, to wit:
    “ For all persons sentenced for a period of from six months to twelve months or over, one dollar and seventy-five cents per week.
    “ For all persons sentenced for a period of from three months to and under six months, two dollars per week.
    “For ¿ill persons sentenced for a period of from sixty days to and under three months, two dollars and twenty-five cents per week.
    “ The party of the first part doth hereby agree to cause to be conveyed to and delivered at the Kings County Penitentiary in the county of Kings, all persons who may be sentenced to be imprisoned therein for any length of time (not exceeding five years) for any crime or misdemeanor, and to pay the prices as hereinbefore stated for the board and maintenance of prisoners so sentenced and delivered to the care and custody of the keeper or warden of the Kings County Penitentiary in the said county of Kings, semi-annually.’’
    Bills were presented by plaintiff for the support of prisoners, which included prisoners convicted of crimes punishable by imprisonment in state prison, who were sentenced to the Kings County Penitentiary from Queens county, in accordance with chap. 247, Laws 1874, and chat). 571, Laws 1875. The question presented is whether, upon the foregoing facts, Queens county is liable to Kings county for the board and maintenance of prisoners convicted in Queens county of offenses punishable by imprisonment in a state prison and sentenced to the Kings County Penitentiary in accordance with law ?

      John A. Quintard, for pl’ff; Francis H. Van Vechten, for def’t.
   Barnard, P. J.

By the Revised Statutes all persons convicted for a criminal misdemeanor were to be imprisoned in a county jail where imprisonment was included in the sentence. 2 R. S. (3d ed.), 784, § 56.

The prisoners were to be supported in the jails by the several counties. Felonies were punishable by an imprisonment in the state prison and in no other place. Prisoners in the state prisons were to be supported by the state at large. This law has never been changed, and the support of convicts for felonies has never been put upon the counties. By chapter 158, Laws of 1856, convicts for felonies punishable by imprisonment in a state prison, between the age of sixteen and twenty-one, might be sentenced to a penitentiary in the judicial district in which the conviction was had. The cost of delivery of the convicts at the penitentiary was directed to be paid by the state treasurer. Chapter 247, Laws of 1874.

By chapter 574, Laws of 1869, in all counties having, a contract with the Albany penitentiary, state prison convicts could be sentenced to the Albany penitentiary without charge to either state or county.

By chapter 571, Laws of 1875, all sentences which could be punished by an imprisonment in a state prison of three years or less could be sentenced to a penitentiary in the judicial district. The comptroller of the state was directed to pay for the maintenance of these convicts.

By chapter 172, Laws of 1877, all females convicted of offenses punishable by imprisonment in a state prison were directed to be sent to the county penitentiary within the judicial district, and this law provided that the state comptroller should pay for the support of these convicts. It will be thus seen that no contract for the support of persons convicted of an offense punishable by imprisonment in a state prison was ever needed. The charge therefor was a state charge and nort a county one. The change in the place of detention of county jail convicts commences with chapter 139, Laws of 1858. By this act two counties were authorized to contract with the Albany penitentiary for the support of persons sentenced to imprisonment not less than sixty days; and by chapter 209 of the Laws of 1874 all counties might contract with a county having a county penitentiary for the support of prisoners convicted of a crime “ not punishable in a state prison.”

The power to contract with the plaintiff upon the part of Queens county, as to the support of prisoners punishable in a state prison, never existed. The contract must be held to be within the spirit of the law, which is to authorize Queens county to board its jail prisoners who are sentenced to detention over sixty days to be detained in a pententiary, where occupation will be furnished to the prisoners, and incidentally to compel the prisoner to earn his own support.

Judgment should therefore be given for the defendant upon the submitted case.

Dykman and Pratt, JJ., concur.


text:
    Celia Stilwell, App’lt, v. Hannah E. Archer, Impl’d, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1892.)

    1. Trial—Affirmative of issue.
    In an action upon a bond, the answer alleged that the defendant was a married woman; that the bond was not given for the benefit of her separate business; that there was no consideration for it, and that it was never delivered to plaintiff by her. There were other affirmative defenses, such as fraud, usury, etc. Held, that the plaintiff had the affirmative of the issue, as he could not recover without showing consideration and delivery, and that it was error to allow the defendant to open and close.
    3. Same—Direction of verdict.
    Defendant gave evidence tending to show usury in the bond, and that her husband’s note was given in satisfaction of the bond. Plaintiff testified that she gave a check for the full amount of the bond; that there was no usury, and that she never authorized her husband to take the note mentioned. Held, that the evidence did not justify the direction of a verdict for defendant.
    Appeal from judgment in favor of defendants, entered upon verdict directed by the court.

      Norman A. Lawlor, for app’lt; Chauncey Shaffer, for resp’t.
   Barnard, P. J.

The plaintiff had the affirmative of the issue under the pleadings. The action is upon a joint bond executed by Eugene Archer and Hannah E. Archer t'a the plaintiff to secure the payment of $1,000. The defendant, Hannah E. Archer, answers that she is a married woman, and that the bond was not given for her séparate business; that there was no consideration for it, and that it was never delivered to the plaintiff. The answer sets up additional affirmative defense, that the bond was obtained by fraud and was usurious, and that the plaintiff accepted the note of Eugene Archer in payment and satisfaction of the bond. The plaintiff upon this state_ of the pleadings, could not take judgment without proof of the' delivery and consideration of the bond. The defendant had the affirmative of the issue given to her; she was then sworn, and testified that she signed the bond at the request of her husband, and that nothing was said by him to his wife as to the purpose or consideration of the bond which accompanied a mortgage upon Mrs. Hannah B. Archer’s separate property. That it had been talked of between the husband and wife that $1,000 was to be borrowed to improve Mrs. Archer’s place. Proof was given by Eugene Archer that he negotiated for the money with Stephen J. Stilwell, his nephew, and upon an agreement that he and Eugene Archer would use money as partners in buying and selling stocks. The money loaned belonged to the plaintiff. Stilwell soon after this married her. Proof was given by defendant, Mrs. Archer, tending to show usury, and that Stephen J. Stilwell owed Eugene Archer profits on stock bought and sold, and that Eugene Archer’s note was given for $1,000 at two years’ credit in satisfaction of plaintiff’s note. The plaintiff testified that she gave a check for $1,000 and received the bond and mortgage; that she never knew of any stock speculation; that there was no usury; that she never authorized her husband to take Eugene Archer’s note for her mortgage. The case went to the jury, and they failed to agree, whereupon the court directed a judgment for the defendant. The plaintiff is entitled to a new trial on the ground that the affirmative of the issue was with the plaintiff. Millerd v. Thorn, 56 N. Y., 402. And also upon the ground that the proof did not justify a direction of a judgment for the defendant. The plaintiff lent the money, and there was nothing proven beyond question which destroyed her mortgage.

The 'judgment should be reversed and a new trial granted,, costs to abide event.

Pratt, J., concurs; Dykman, J., not sitting.


text:
    David H. Hunt, Resp’t, v. John D. Griffen, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1892.)

    Attorneys—Services—Evidence .
    Under a complaint for services as attorney performed for defendant and in liis behalf, evidence of services performed at defendant’s request in defense of his salesman, who had taken possession of property under a bill of sale given by a customer of defendant to protect claims against him which had been assigned to said salesman, is admissible.
    Appeal from judgment in favor of plaintiff, entered upon verdict, and from order denying motion for a new trial.

      Gustavus W. Rawson, for app’lt; David H. Hunt, resp’t in person.
   Barnard, P. J.

The complaint contains an averment that the plaintiff is an attorney at law and that at the request of the defendant the plaintiff rendered services “ for said defendant and in his behalf ” to the amount of $300. That eighty dollars was paid on the claim and that $220 was due.

Upon the trial the plaintiff offered proof tending to show that a part of the services were rendered in the defense of one Sears, a salesman of defendant. Sears bad taken title to personal property from a Mr. Blackman for a debt which belonged to defendant. The defendant objected to the reception of the proof of services rendered in behalf of Sears as inadmissible under the complaint.

The objection had no merit. If the defendant employed the plaintiff on his credit to render services to Sears, it is the same as if the services were done for the defendant himself. If the plaintiff is right, the only person who received the benefit of the services was the defendant himself. As to the other items which make up the plaintiff’s claim, evidence of the plaintiff is positive that the services were rendered at the request of the defendant and upon his credit. The defendant denies the statement entirely and the jury has found in favor of the plaintiff. The direct evidence is almost wholly confined to the testimony of the parties and the case does not prevent such a preponderance of testimony in favor of the defendant as will justify an appellate court in reversing the finding of the jury.

Judgment affirmed, with costs.

Dykman and Pratt, JJ, concur.


author: Dykman, J. Pratt, J.

text:
    Cornelius A. Van Wagener, Resp’t, v. William B. Royce et al., Adm’rs, App’lts.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1892.)

    Decedent’s estates—-Contract—Loches.
    In order to settle conflicting claims to property against which a foreclosure was pending, plaintiff and others in 1881 entered into an agreement under seal with defendants’ intestate, by which the foreclosure sale was to be postponed, the interests of plaintiff and the others conveyed free of incumbrances, and for these intestate was to pay $8,000, of which $500 was to go to plaintiff, and to settle certain litigations and judgments. Plaintiff quit-claimed to one G., who conveyed to one H., who purchased on the foreclosure sale and conveyed to intestate, and the latter paid him $1,200, none of which came to plaintiff. Plaintiff was compelled to pay one of the judgments which intestate agreed to settle, but did not. Claim for the amount due to plaintiff and the amount so paid by him was presented in 1889 to the administrators, and referred. Held, that the delay in asserting the claim, as to which no explanation was required, was not so great as to invalidate it; that there was nó proof of an abandonment of the agreement, and that under the circumstances payment of the claim was properly ord. red.
    Appeal from judgment entered upon the report of a referee in proceedings upon a disputed claim against the estate of Henry R. Low.

      B. F. Low, for app’lts; Greene & Bedell, for resp’t.
   Dykman, J.

The plaintiff in this action presented a claim for eleven hundred dollars against Henry R. Low, deceased, to his administrators with the will annexed, which they rejected.

A reference was thereupon made under the statute and the referee reported in favor of the plaintiff for the full amount of his claim.

Judgment was duly entered upon the report and the defendants have appealed therefrom.

The claim was based upon an agreement in writing under seal, between Jesse C. Hansee, C. A. Van Wagener, the plaintiff, and Henry E. Low, dated on the 2d day oí December, 1881. The writing seems to have been signed by M. E. Hansee, also. The agreement was this: “ It is agreed by and between the undersigned Jesse C. Hansee, C. A. Van Wagener, and Henry E. Low, as follows: First. That the mortgage sale of the Sam’s Point property shall be postponed to the 16th day of December, 1881, without prejudice to either party.

“/Second. H. R. Low will pay the sum of $3,000 in full settlement of all claims which Jesse C. Hansee, Maryette Hansee and said C. A. Van Wagener, representing himself and Gertrude Chipp, have against the said Sam’s Point property, which property is the same property advertised to be sold under a decree of sale, made on the 15th day of October, 1881, before Judge Barnard, and is intended to include all the right, title and interest which each of the parties have in said property,-and all costs and attorneys’ fees, printers’ fees, and other costs and charges relating to said sale and foreclosure, also the mortgage of $300 given heretofore to William J. Groo, now held by Henry C. Duryea, receiver.

“Third. The said Low is to "cause all suits and judgments against Maryette Hansee, Jesse C. Hansee and said C. A. Van Wagener, growing out of the litigations relating to said property to be withdrawn and cancelled, such judgments and suits being the following:

“First. The suit and judgment of Maryette Hansee against Thomas Botsford and Adele Van Gorder.
“Second. Judgment in matter of Sackett L. Duryea against Thomas Botsford.
Third. Suit of Van Wagener and Elliott against Thomas Bots-ford; and said Jesse C. Hansee to assign to said Low the said judgment against William J. Groo. All said interest of said parties above named in the said mortgaged premises, and in the road leading to the same owned by said Hansee, shall be conveyed clear of incumbrances. Of the sum of $3,000, the sum of $500 is to be paid to said Van Wagener and the principal sum and interest on the same due Gertrude Chipp, but not attorneys’ fees, the balance of it to be paid Jesse G. Hansee.
“The suit of C. A. Van Wagener and Maria A. Elliott against Thomas Botsford to be settled and discharged as above provided.
“The said Low is to pay J. C. Hansee fifty dollars, to pay receiver and attorneys’ fees in case against Groo. The payment to be made on December 16, 1881, on delivery of the various deeds and transfers mentioned, at Kingston, Hew York.
“ Sealed and dated December 2, 1881.
“H. R. Low, [l. s.]
“Jesse G. Hansee, [l. s.]
“M. E. Hansee, [l. s.]
“ G. A. Van Wagener. [l„ s.]”

In pursuance of an understanding between the parties to that agreement, the plaintiff and his wife executed and delivered to John G. Gray a quit claim deed of all their interest in the property designated in the agreement. That deed was dated December 3, 1881, and on the 24th day of January, 1882, John G. Gray and his wife executed and delivered to Jesse 0. Hansee a quitclaim deed of the same property.

On the 16th day of December, 1881, the property was sold under the judgment of foreclosure and Jesse 0. Hansee became the purchaser and received the deed from the referee.

On the 7th day of February, 1882, in pursuance of the agreement, Jesse 0. Hansee with his wife executed and delivered a deed of the premises to Henry E. Low, who accepted and recorded the same.

At the time of the execution and delivery of the deed from Hansee to Low,' the latter paid the former $1,200, but no part of' that money came to the plaintiff.

Low did not pay to the plaintiff the sum of $500, as he was to-do under the agreement.

Low did not pay the judgment of Van Wagener and Elliott-against Thomas Botsford nor cause the same to be cancelled, as he undertook to do in the agreement, and the plaintiff was compelled to pay $600 to the attorney of Botsford in that action, by reason of such neglect of Low.

When the agreement was made the property was advertised to-be sold the next day under the judgment in foreclosure. Thomas Botsford had given the mortgage which was in process of foreclosure, and he claimed some interest in the property and was in ' possession.

The plaintiff in this action, William J. Groo and Jesse C. Han-see, each claimed an interest in the property, and the purpose of the agreement was to concentrate and settle those conflicting interests and claims, and the sale was adjourned to afford time for the consummation of such designs.

The plaintiff made a quit claim deed of his interest in the property to Gray, and he in turn made a quit claim deed to Hansee, but he neither paid nor received any money, and now the plaintiff claims that an action has accrued to him against Low, by virtue of the agreement, to the extent of $1,100.

On the other hand, the defendants claim that the agreement-was abandoned. That it was found to be impracticable to carry out the designs of the parties, and the sale took place as if the agreement had not been made.

A careful examination of the case discloses circumstances in favor of the contention of both sides.

The great delay in the prosecution of the plaintiff’s claim is an unfavorable fact, but not conclusive against its validity.

Then again, when Hansee bid off the property his bid was-$1,405, and when Low took the conveyance from Hansee he only paid $1,200, and agreed to reconvey upon repayment of that sum, and Hansee paid $205 for the costs out of his own pocket, and it is claimed that his conveyance did not include the whole property.

These are strong circumstances in favor of the defendants and cause much hesitation. Yet, it is to be said on the other hand that Low agreed to pay $8,000 in settlement of the claims of the plaintiff, representing himself and Gertrude Chipp, and that her claim was paid from the money received from Low.

The plaintiff did make a conveyance of his interest in the property which eventually became vested in Low, and if his conveyance failed to include all the property it was no fault of the plaintiff, and seems to have been at most but the result of a mistake which could have been corrected by Low at any time.

The agreement of Low to reconvey was with Hansee and could not affect the rights of the plaintiff under the agreement. Moreover, the deed invested him with title, and it could only be declared a mortgage at the instance of one of the parties, and no movement was ever made in that direction. If the plaintiff paid $600 for his own protection to retire the suit of Botsford, it Avas for protection which Low agreed to furnish, and if lie pays that sum and the $500, he will pay no more than he undertook to pay by the agreement, and if the plaintiff does not recover his claim here he will lose all, as his interest in the property has passed to Low.

There is no proof of the abandonment of this agreement, and the payment of the claim of Gertrude Ohipp with money received from Low was in pursuance of its provisions.

Moreover, it is by no means certain that his conveyance from Hansee does not include ail of the property.

Under all .he circumstances we think the ends of justice will be attained by an affirmance of this judgment.

Judgment affirmed, with costs.

Pratt, J.

We think the testimony of Hansee shows that as between him and Low the deed had somewhat the character of a mortgage, and that Low was to reconvey upon being made good the amount of his investment

We do not find evidence that Hansee was bound to reimburse Low.

• It may well be that Hansee had an option without being under obligation to Low. But if we assume' that to be the situation, we do not see that it affects the rights of the parties here. Hansee did not repay Low, and the statute of limitations is now a bar to his right to claim a reconveyance.

The property which the plaintiff parted with became vested in Low and now is a part of his estate.

If plaintiff Avas aware that Low was acting as a friend of Han-see, not primarily seeking his own benefit, that may explain why he rested seven years without enforcing his rights.

In this connection it is fair to mention that he was not called on for an explanation of the delay. It may well be that such explanation, if called for, would have been ample; and Judge Groo, who is one of the administrators of Mr. Low, and who was a party to the agreement sued on, did not testify in the cause, which he surely would have done if his evidence would have been aseful to defendants.

Upon the whole case we are of opinion that the judgment should be affirmed without costs.

Judgment affirmed, without costs.

Barnard, P. J., concurs.


author: Daly, Ch. J.

text:
    Samuel E. Hendricks, Appl’t, v. George S. Daniels, Resp’t.

      (New York Common Pleas, General Term,

      Filed June 6, 1892.)

    1. Bbokebs—Commissions.
    Plaintiff's assignor was employed by defendant to sell certain property, at a fixed sum, and negotiated with one R., who' reserved his decision and agreed to notify him next day, which he did not do. On defendant inquiring in regard to the matter, having another offer, plaintiff’s assignor said that he supposed the matter had dropped, but claimed commissions if defendant sold to any one he had seen. Defendant afterwards sold to R., through another broker. Held, that as plaintiff’s assignor had failed to procure a purchaser at the price named, and had given defendant the impression that his negotiations were at an end, he was not entitled to commissions, though the sale was afterwards made to the same party.
    2. Same.
    The broker who first calls the attention of a purchaser to the property, and negotiates with him for sale, is prima facie the procuring cause of the subsequent sale, unless the paities in good faith withdraw from the negotiations and abandon the proposed purchase and sale prior to a subsequent renewal of negotiations, or unless the owner sells by another broker.in good faith.
    Appeal by plaintiff from a judgment of this court for costs, entered upon the verdict of a jury in favor of defendant, and from an order denying a motion for a new trial.

      W. C. Reddy, for appl’t; Geo. S. Daniels, resp’t in person.
   Daly, Ch. J.

Defendant employed plaintiff’s assignor, Randrup, a real estate broker, early in April, 1890, to'sell his two houses for $4,250 each. Randrup offered one of them on July 25th to one Roland, who proposed to take it provided he could get possession at a date named, and upon certain terms and conditions as to payment, and who reserved his decision until the next day, promising to notify Randrup then whether he would take the house, and if he decided to take it agreeing to meet Randrup oh the Monday following to go to defendant’s office and close the transaction.

Randrup immediately notified defendant by letter of all the above facts, and defendant agreed to the conditions proposed by the purchaser. The latter, however, did not communicate with Randrup, as promised, nor meet him, nor the defendant, on Monday as agreed. The next day, Tuesday, in the afternoon, the defendant received an offer for a less sum from another broker named Dowd. He then went to Randrup and asked him what had become of his customer. Randrup said that he had not seen him since Friday, and he presumed the matter had been dropped, as he was at that time uncertain whether to take the house or not.

Defendant told Randrup that he had called because he had received a less offer through another broker, and he intended to take that offer unless the previous one was accepted. Randrup replied that he claimed a commission if the defendant sold to any one who had seen him. The defendant answered that he would not pay a commission to Bandrup unless the latter procured a purchaser at his price, and that if another broker offered a customer at a price he thought satisfactory, he would take the offer. Bandrup then gave defendant a card with the names of the persons who had been to see him and as to whom he claimed a commission. Among them was the name of Boland. The next day Bandrup called on defendant and told him he had learned that Boland was the customer who had made the offer of a less sum through the other broker. The defendant said that he would sell the house to any one who would procure him a customer. The same day Boland was brought to defendant by Dowd and the sale was made for §4,050.

It is claimed by plaintiff that Bandrup’s negotiations with Boland -were the procuring cause of the sale to the latter and that the defendant is bound to pay the agreed commission because he took the negotiations out of the broker’s hands and concluded them himself. If the facts sustain this view of the defendant’s conduct the plaintiff would have been entitled to recover. The latter's theory is that the defendant, in effect, prevented the plaintiff’s assignor from earning his commissions by interfering with his negotiations. But, according to defendant’s testimony (which we must assume from the verdict in his favor the jury believed), Bandrup had abandoned his negotiations with Boland before the defendant accepted the lower price from the latter. It also appeared from the testimony of the purchaser that he had withdrawn from the negotiations with Bandrup because the price named was too high, and Bandrup had stated that there would be no abatement of the sum named. Bandrup told the defendant that he presumed the matter was dropped. Upon this state of facts defendant was free to accept the services of another broker, or to negotiate with Boland and to take the best price he could get for his property. Bandrup had failed in his effort to procure a purchaser at the price named by defendant, and, having given the latter the impression that his negotiations were at an end, is not entitled to commission though the sale was afterwards made to the same party. Sibbald v. B. I. Co., 83 N. Y., 378; Wylie v. Marine Nat. Bk, 61 id., 416.

It did not affect the right of the defendant to open negotiations with a purchaser, that plaintiff’s assignor notified him that he would claim a commission if the property were sold to that party. There was no notice to the defendant that Bandrup was still negotiating with the party; on the contrary, the notice was in effect that the negotiations were at an end. The defendant’s version of the transaction, which, as wc have said, was accepted by the jury, shows that this was not a case "in which the employer, without terminating the broker’s agency, took the negotiations into his own hands. Martin v. Silliman, 53 N. Y., 615; Briggs v. Boyd, 56 id., 294; Morgan v. Mason, 4 E. D. Smith, 636. The reason why Bandrup’s negotiation with Boland failed that while the latter was considering the purchase he was approached by another broker with the suggestion that he could get the property at a lower price. The defendant was not in any manner responsible for the acts of the other broker, nor for the ■customer’s change of mind. It is not- conceivable that he would interfere for the purpose of getting $4,050 for his property, when, if he had permitted the negotiations to proceed, he might have obtained $200 more. , He seems to have acted in entire good faith, and the verdict of the jury is fully sustained by the evidence.

The exceptions taken by the plaintiff do not call for reversal. The charge by the court “that if Dowd procured a purchaser without any interference on the part of defendant, defendant had the right to conclude a contract notwithstanding the previous transactions with Randrup,” was entirely correct. The modification of plaintiff’s request “that the broker who first calls the .attention of the purchaser to the property and negotiates with him for sale is jprima facie the procuring cause of the subsequent sale, unless the parties in good faith withdraw from the negotiations and abandon the proposed purchase and sale prior to a subsequent renewal of negotiations” by the addition “unless the party sells by another broker in good faith,” states correctly the general rule. The plaintiff’s exception to the court’s leaving the question of bad faith on the part of the defendant to the jury was not well taken. It was more favorable to the plaintiff than the proof warranted, because there was no evideñce of bad faith on defendant’s part. The evidence of the commissions paid to the other broker--could not have affected the result, and possibly the admission of this proof was not improper on the question of good faith.

Judgment and order appealed from affirmed, with costs

Bischoff and Pryor, JJ., concur.


author: Bookstaver, J.

text:
    Charles Kummer, Resp’t, v. The Christopher & Tenth Street Railroad Co., App’lt.

      (New York Common Pleas, General Term,

      Filed June 6, 1892.)

    1. Negligence—Evidence—Opinions.
    In an action for personal injuries the opinion of an expert who had not examined plaintiff in eleven months as to whether the tendency in injuries of that kind was to shorten the limb is inadmissible for the purpose of showing that plaintiff’s limb was shorter at the time of the trial than when examined, as such fact could easily be proved by an examination of the limb.
    S3. Same.
    Where plaintiff claims to have been thrown from a street car by the driver, it is error to exclude testimony of witnesses who attended him immediately after the accident that he made no such claim at that time.
    Appeal from a judgment entered upon a verdict' and from jm order denying a motion for a new trial..

      Merrill & Rogers, for app’lt; Herbert T. Ketcham, for resp’t.
   Bookstaver, J.

This action was brought to recover damages for personal injuries which plaintiff claimed were inflicted upon him through the wrongful act of defendant’s servants whereby he was thrown from the rear platform, of a car and sustained an injury to one of his legs. The only questions arising upon this appeal are as to the admission of evidence, and the most important relates to the admission of expert testimony. Dr. DuFloo was examined as a witness for plaintiff and had testified that he had examined him physically in February, 1891, eleven months before the trial, and at that time the injured leg was one inch shorter than the other, and that he had not examined him after that time. He was then asked:

Q. Between the time of your first examination and the present time what would be the reasonable tendency of the leg as to the injury, as to becoming longer or shorter? Defendant’s counsel: Do you mean to confine the question to the two periods? Plaintiff’s counsel: I mean to confine it to that. Defendant’s counsel: I have no objection to the doctor’s stating facts; I think he can state the fact whether it was longer or shorter. I think that question calls for an opinion, and not a fact, and it is conjectural, uncertain and too remote.”

The question was allowed, to which the defendant duly excepted. To this question the doctor answered : “ The experience from away back of great surgeons is that injured-legs shorten more and not lengthen.” The doctor was then asked: “ As to the period; suppose an examination ; suppose the injury received on the 18th of August, 1889, an examination had in February of 1891; between the time of that examination and January of 1892, what would be the reasonable tendency ? ” This was duly objected to by defendant’s counsel, the objection was overruled and exception taken, and the doctor answered : “ The tendency would be to shorten ; as I said before, a limb that is fractured, especially these fractures, shorten and never lengthen.” Apparently, the only purpose of this evidence was to show the condition of plaintiff’s leg at the time of the trial, and to lead the jury to infer that it was shorter than when examined eleven months before. But this was a fact susceptible of observation, and capable, if true, of absolute proof by a witness having knowledge of the fact, by a re-examination, and there was no reason given why such a re-examination should not have been had. Under such a state of facts, opinion evidence, which at best is of inferior quality, and is only admitted from the necessity of a case, was not justified. As a general proposition it may be stated that testimony must relate to facts of which the witness has knowledge; inferences or conclusions from the facts must be drawn by the jury. Expert testimony is an exception to this rule; the cases where it is allowed are limited and well defined; tjiey all rest on the ground of necessity. And another general rule is that the best and highest evidence must always be given, and secondary evidence is only admissible after there has been a necessary failure of the best. In Mayor, etc., v. Pentz, 24 Wend., 668, Senator Verplanck, at pages 673-4-5, discusses the rule and the exceptions, and says: “ The broad rule, to which the ancient law scarcely knew an exception, is that testimony can relate merely to facts, and that the inferences from them are to be made by the jury. In ordinary cases, the issues being strictly on the existence of facts capable of being proved or disproved by direct evidence, opinion as well as hearsay must be excluded. But this general rule has been broken in upon by the admission of various classes of exceptions, all resting on the common ground of necessity. Such necessity is allowed to exist when the facts in issue are not themselves zjccessible by evidence, being either future probabilities or more contingencies, or else actual facts,¡but not within positive knowledge; all of these must, of necessity be judged of only from other proved facts known generally to accompany or to indicate those in question, when the facts to be ascertained are inferred from some rule of art, or science, or observed law of nature thus proved. * * * There it is a matter of necessity to call in „ the experienced or instructed opinion of such witnesses. * * * Opinion is admitted when a jury is incompetent to infer, without the aid of greater skill than their own, as to the probable existence of the facts to be ascertained, or the likelihood of their recurring from the facts actually proved before them. Indeed it would be more logically accurate to say that mere opinion, even of men professional or expert, is not admissible as such ; but that facts having been proved, men skilled in such matters may be admitted to prove the existence of other more general facts or laws of nature, or the course of business as tire case may be, so as to enable the jury to form an inference for themselves.” As a rule, witnesses must state facts and not draw conclusions or give opinions. It is the duty of the jury or court to draw conclusions from the evidence, and form opinions upon the facts proved. The cases in which opinions of witnesses are allowable constitute exceptions to the general rule, and the exceptions are not to be extended or enlarged so as to include new cases, except as a necessity to prevenía failure of justice, andiuhen better evidence cannot be had. Teerpenning v. Corn Exch. Ins. Co., 43 N. Y., 281. In Ferguson v. Hubbell, 97 N. Y., 507, Earl, J., reiterates the general rule and its exceptions, among which an effort to prove by means of opinion evidence a present fact susceptible of observation and demonstration is not" one, and says (at p. 514): “ The rules admitting the opinions of experts should not be unnecessarily extended. Where witnesses testify to facts, they may be specifically contradicted, and if they testify falsely they are liable to punishment for perjury. But they may give false opinions without the fear of punishment. It is generally safer to take the judgments of unskilled jurors than the opinions of hired, and generally biased experts.”

And in the same case at page 513, the learned judge says: “The jurors may have less skill and experience than the witnesses, and yet have enough to draw their own conclusions, and do justice between the parties. Where the facts can'be placed before a jury, and they are of such a nature that jurors generally are just as competent to form opinions in reference to them and draw inferences from them as witnesses, then there is no occasion to resort to expert or opinion evidence. To require the exclusion of such evidence, it is not needed that the- jurors should be able to see the facts as they appear to eye witnesses, or be as capable to draw conclusions from them as some witnesses might be, but it is sufficient that the facts can be presented in such a manner that jurors of ordinary intelligence and experience in the affairs of life can appreciate them, can base intelligent judgments upon them, and comprehend them sufficiently for the ordinary administration of justice.” As before shown, the exact fact in regard to whether the plaintiff's leg was actually shorter eleven months after the first examination could have easily been proved by an examination of the limb, and there was no excuse or room for substituting therefor the expert opinion of the witnesses.

We also think that the court erred in preventing the defendant’s witnesses, who attended to the plaintiff immediately after the accident, from testifying that he did not claim that the driver of the car had thrown him from it. His silence in regard to that matter at the time of, or immediately following the accident, was a pregnant fact to be considered by the jury.

For these reasons we think the judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event

Bischoff, J., concurs; Pryor, J., concurs in result.


text:
    Isaac Feinberg, Resp’t, v. Lorenz Weiher, App’lt.

      (New York Common Pleas, General Term,

      Filed June 6, 1892.)

    Contract—Breach—Unskillful work.
    In an action for breach of contract, where work had been stopped by-defendant, the court charged the jury that if they found that the work was not done in a workmanlike manner, and it was not the intention of plaintiff's assignor to go qn and complete the work ip a workmanlike manner, then the defendant was justified in stopping the work. Held, error; that if the contractor fails to perform the work in a workmanlike manner, he may be discharged without regard to his intentions.
    ' Appeal from a judgment rendered at a trial term of this court, in favor of plaintiff and against the defendant

      Simon Sultan, for app’lt; Horwitz & Herschfield, for resp’t.
   Bookstaver, J.

This action was brought by the plaintiff for the recovery of damages for breach of an alleged contract claimed to have been made by one Mina E. Feinberg to furnish and hang paper for 150 rooms in six five-story houses owned by defendant. The evidence showed that the contractor did one day’s work in the buildings, papering seven rooms in all; the defendant then notified the plaintiff, as he claimed, not to do any more work in the houses for the reason that the work was done in an unskillful and unworkmanlike manner. This the plaintiff denied, but claimed that the reason why there was a suspension of the work at that time was, because plaintiff’s assignor was told by the defendant that as the paper hangers and painters, who were working in the same houses at the same time, had gotten into quarrels and disputes .among themselves, the paperhangers should cease work and allow the painters to make enough headway to get out of the way, when the paperhangers might resume their work. Considerable evidence was given to support each of these contentions. In addition to this the defendant testified that he provided in the contract that he could stop work at any time if the plaintiff’s assignor did not do the work right or in a proper manner; also, that he had shown him another house and said to the contractor that if he did that kind of work he would be satisfied, but if not, he would stop it

Among other things, the court charged the jury as follows: “ If you find that the work was not done in a workmanlike manner and it was not the intention of the plaintiff’s assignor to go on and complete the work in a workmanlike manner, then the defendant was justified in ordering the work stopped.” And after referring to a letter written by the defendant, and which was in evidence, said: “ It is for you to say from the evidence you have heard, whether there was any intention on the part of the plaintiff to go and do a workmanlike job on the premises.” This portion of the charge was duly excepted to. If the evidence on defendant’s part as to the unworkmanlike manner of the work were accepted as true, the defendant had a right to terminate the contract regardless of plaintiff’s future intentions.

It is an elementary rule of law that a person who undertakes, in any trade requiring special skill or knowledge,' to perform or furnish for another any service, impliedly contracts and warrants that he will carefully and skillfully perform the work according to the rules and principles of the art or trade in which he is engaged; there is an implied promise that the work shall be performed in a workmanlike manner, and if the contractor fails to comply with such implied contract, the servant, employee or contractor may be discharged by the employer from the further prosecution of the work as for a breach of contract. And there is no difference in the application of tins rule whether the employee or contractor does the work himself oremploys others to do it. Wood’s Master & Servant, 2d Ed., 310 ; Fraser's M. & S., 55, 56 ; Story on Bailments, 9th Ed., § 428. The court below, instead of charging simply that if the work was done in an unworkmanlike manner the defendant had the right to terminate the contract, in effect charged that, assuming it was true that the work was done in an unworkmanlike manner, the defendant could not terminate the contract unless he proved an intention on plaintiff’s part not to go. and complete it in a workmanlike manner. From this the jury might well have inferred that although the plaintiff, according to the evidence of the defendant and his witnesses, had done his work in such an unworkmanlike manner that it was of no value and had to be gone over again by the new contractor, yet they could disregard this evidence unless the defendant had also proved to them the absence of an intention on plaintiff’s part to complete the work in a workmanlike manner.

But the court afterwards also further charged, which we think is also covered by the exception, as follows : You are to say whether you think from their (the witnesses’) description it was a proper job, and whether the plaintiff intended to do the work properly or not; if you find in the negative on that proposition, then, of course, the defendant had a right to stop her.” This was-in effect telling the jury that only in case they found both these facts to exist, an improper job and an absence of an intention on the plaintiff’s part • to do the work properly in the future, could they find for the defendant. If the testimony offered on defendant’s behalf was to be believed, seven of his rooms were spoiled by the unworkmanlike manner in which the contractor had performed the job, which would seem to be sufficient to justify him in discharging the plaintiff’s assignor; yet, according to the charge, he could not do so without also showing in justification of the discharge that the contractor had no intention of righting the wrong already done, and perform the remainder of the# job in a workmanlike manner in the future.

There are many cases which hold that mere trivial omissions and imperfections in the contractor’s work will not prevent his recovery provided he shows an intention to carry out his work in good faith. But there are also many cases holding that where the work of the contractor is bad throughout, even although he did all the work contracted for, he can recover nothing; his intentions in such cases are entirely immaterial. Pullman v. Corning, 9 N. Y., 93; Smith v. Brady, 17 id., 173; Glacius v. Black, 50 id., 145; Woelreich v. Fettretch, 21 St. Rep., 56. The court below in its charge, however, did not enter into the distinctions between trivial and substantial defects, but broadly put to the jury the proposition that if the work was not done in a workmanlike manner, the plaintiff still had a right to recover unless the defendant also showed the absence of an intention to do a workmanlike job.

We think this was error for which the judgment should be reversed and a new trial ordered, with costs to abide the event.

Bischoff and Pryor, JJ., concur.


text:
    Gustav Muller, App’lt, v. Hermann Schumann et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed June 6, 1892.)

    1. Pleading—Contract.
    A complaint in an action upon a contract of hiring by which plaintiff is to exert himself and. use his endeavors in putting defendants in communication with foreign manufacturers, “so that they might procure the sale ” in' this country of goods manufactured by such foreign manufacturers, which does not allege that by virtue of plaintiff’s endeavors and exertions defendants did procure the sale of such goods, is fatally defective.
    2. Same—Dismissal of complaint.
    Where the plaintiff fails to prove the contract alleged in the complaint, but proves a different one, it is proper to dismiss the complaint.
    3. Trial—Request to go to jury.
    In such a case error cannot be predicated upon a refusal of a request to go to the jury on the question whether there was a contract between the parties, as'such fact is immaterial unless shown to be the contract alleged in the complaint.

      Appeal from a judgment dismissing a complaint at trial term of this court.

      F. J. Bischoff, for app’lt; John A. Straley, for resp’ts.
   Bookstaver, J.

This action was brought to recover for services alleged to have been rendered under contract with the defendants. The complaint alleges that on or about the 5th day of January, 1890, the defendants agreed with plaintiff that if he would enter their employ “ and exert himself and use his endeavors in putting them in communication with manufacturers of merchandise in Europe so that they might procure the sale in the United States and Ganada of the goods manufactured by said European manufactories," they would pay him the sum of $5,000. This means something more than an engagement for payment of services only. So that, as here employed, is equivalent to “ with the result that," or, “in such a manner that,” which seems to place the meaning of the clause beyond any controversy to be, that the exertions and endeavors were to result in the defendants procuring the sale of the goods of such European manufacturers. There is no allegation in the complaint that by virtue of his endeavors and exertions the defendants did procure the sale of the goods of these manufacturers, or otherwise. Hence, the complaint is fatally defective in this respect, and this defect is not cured by the evidence. The plaintiff at first testified as follows: “ Mr. Schumann told me he would give me; I got a letter from Europe to get the agencies ; he said, 11 am a rich man; I will give you $5,000, and I want to put in $200,000 capital in the business, and if you get your work done and all the agencies to the house, you know you get your $5,000, and you manage the business and give me one-third of the profits afterwards.’ ” But he nowhere testified, nor is there any evidence whatever to show, that he procured a single agency for the defendants. Hence, there was an utter failure to prove the cause of action alleged in the complaint. It is true that after-wards this testimony was somewhat modified in answer to a leading question put to him by his counsel, which was as follows;

“ Q. That you were to get the agencies, or try to get them? A. If I did try to get the agencies for the European houses, and if I did my best, the best what I could, he is willing to pay me $5,000.”

This testimony, if it were taken to be true, in no way tended to prove the contract alleged in the complaint, but another and an entirely different contract not alleged therein.

And there was no request to amend the pleading to conform to the proof. In Southwick v. First National Bank of Memphis, 84 N. Y., 420, the rule is stated to be that “ where the plaintiff has. failed to prove the cause of action lie has alleged, and the defendant takes proper objection thereto, and an amendment of the complaint is neither asked for nor ordered, a judgment in plaintiff’s favor upon another cause of action, not alleged, cannot be sustained on appeal." And in Truesdell v. Sarles, 104 N. Y., 164; 5 St. Rep., 565, the rule is stated to be well settled that no judgment can be given in favor of a plaintiff upon grounds not stated in his complaint, nor relief granted for matters not charged, although they may be apparent from some part of the pleadings or evidence. The principle still remains that the judgment to be rendered must be secundum allegata et probata, and this rule cannot he departed from without confusion, uncertainty and mischief in the administration of justice. Wright v. Delafield, 25 N. Y., 266; Hawes v. Dobbs, 44 St. Rep., 890.

The sufficiency of the complaint was clearly raised by defendant’s motion to dismiss it both on the opening and after the taking of testimony. And yet no amendment was either asked for nor granted. Under such circumstances we think the court below properly dismissed the complaint. The general test as to the propriety of refusing to submit a point to the jury is whether their verdict on that question, if gainst the moving party, must be set aside as contrary to the weight of evidence. Dwight v. Germania Life Ins. Co., 103 N. Y., 359; 3 St. Rep., 115; Neuendorf v. World Mut. life Ins. Co., 69 N. Y., 389; Cagger v. Lansing, 64 id., 417. As before shown, there was no question of fact which could be properly submitted to the jury or would warrant a verdict of any kind against the defendant upon the pleadings as they stood.

The request to go to the jury was on an immaterial question, and error cannot be predicated of it. It appears by the record that the plaintiff’s counsel interrupted the judge in his ruling, and stated that he desired to go to the jury on the specific question of fact as to whether or not there was a contract made between the plaintiff and defendants. Whether there was a contract between plaintiff and defendants is immaterial, as before shown, unless it was the contract alleged in the complaint, because no judgment could be awarded thereon unless it were alleged. Besides, there was no exception taken to the refusal.

We therefore think the judgment should be affirmed, with costs.

Daly, Ch. J., concurs.


text:
    Henry W. Steinhaeuser, Assignee, Resp’t, v. John Mason, App’lt.

      (New York Common Pleas, General Term,

      Filed June 6, 1892.)

    Fraud—Conspiracy.
    In an action for a balance due on a sale of diamonds, the answer alleged that plaintiff and one L., an employee of defendant, conspired to take advantage of defendant’s ignorance by selling him goods upon L.’s representation that they were worth the sum charged and could not be bought for a less price in open market, and that, relying on such false representa- \ tians, defendant purchased the goods in question. No evidence was given to i show any connection between the plaintiff and L., except that the latter had formerly been in plaintiff’s service, which was known to defendant when he employed him, and defendant testified that he relied on L. ’s judgment and advice as an expert diamond buyer. Held, that the defense was not sustained.
    Appeal by defendant from a judgment of this court in favor of plaintiff, for 814,136.77, entered upon the report of a referee,

      Franklin Bien, for app’lt; Abram filing, for resp’t.
   Daly, Ch. J.

The action was originally commenced by the plaintiff’s assignor Charles Magnus, to recover $12,411.89 balance claimed to be due upon the sale by him to the defendant of merchandise consisting of diamonds, pearls and precious stones, at the agreed price of $33,380.49, crediting defendant with the payment of $20,000, on account, and the return of part of the goods of the value of $868.60. After the commencement of the action the plaintiff Magnus made an assignment for the benefit of creditors to the present plaintiff, and the action was continued by the latter by supplemental complaint.

The defense to the claim upon which the action is based is that the defendant, a young man, had just started in the diamond and jewelry business, and was unacquainted with diamonds and precious stones, and that Magnus and one, Lalcemeyer (who was an employee of defendant) entered into a conspiracy to take advantage of defendant’s ignorance and sell said goods to him upon the representation made by Lakemeyer that they were reasonably worth the sum charged therefor, and could not be purchased at a cheaper price in the open market from importers of such goods; and that Magnus well knew at the time that the prices were double what the goods could have been purchased for in the open market, and that he knew that he was defrauding defendant out of his money; and that in reliance upon such representations defendant, purchased the goods,

The defense was not supported by the proof. Beyond the fact that Lakemeyer had been in Magnus’ service before he was employed by defendant, no connection between the two was shown; and as the defendant knew when he hired Lakemeyer that he had been so previously employed by Magnus, there was no deception in that regard. According to defendant’s own testimony Lakemeyer advised him to purchase the goods, and he relied upon Lakemeyer’s judgment, but this, in the absence of any proof that Lakemeyer was acting with Magnus, not only made out no case against Magnus, but in fact negatived any claim that the sale was induced by the representations of the vendor.

It is true the defendant also swore that one Stackhouse, the salesman for Magnus, represented the goods to be first-class and the best in the market and as cheap as could be bought in the open market, and defendant swore that he relied upon Stackhouse’s statement; but the referee was entirely justified in finding that the purchase was made by defendant in reliance upon the judgment of his employee Lakemeyer and nothing else. The defendant testified that Lakemeyer examined the goods and told him that they were excellent stuff, and that he employed Lakemeyer as an expert diamond dealer and relied upon his judgment altogether.

This testimony could leave no doubt in the mind that the defendant bought the goods in reliance upon the judgment <of Lakemeyer, and not upon anything that Stackhouse might have to say in praise of his employer’s wares. It is not to be easily credited that in making a purchase of over $30,000 worth of precious stones, of the value of which he knew nothing, the defendant would rely upon any such general representations as he attributes to Stackhouse, who, it may be said, frankly admits that he told the defendant that they were all first-class goods. But the defendant hired Lalcemeyer to protect his interests in such purchase, .and it is evident relied upon his opinion in making this purchase. The referee was, therefore, justified in finding that there was no fraud or conspiracy practiced by Magnus or his agents or employees, and that no representations were made by Stackhouse, or by Magnus, to induce the sale, and having made a finding to that effect it is immaterial that he, although he found in compliance with a request of defendant that the plaintiff was bound by the representations of Stackhouse, refused to embody such finding in his decision. ‘

The plaintiff having failed to prove his defense of conspiracy between Magnus and Lalcemeyer, claims that the evidence establishes an additional defense, to wit, fraudulent representations by Magnus, through Stackhouse, inducing the sale. This defense is not set up in the answer, nor did the defendant move for an amendment to the answer so as to allege such a defense. He did make a motion to conform the answer to the proof “to have it clearly shown upon the record that the goods sold by Magnus and mentioned in the bill of sale were not reasonably worth the sum therein charged, but were only worth the sum of not exceeding §20,000, and that they could have been bought upon the open market at that price.” This motion was denied by the referee because that defense was already set up in the answer. The answer does contain an allegation substantially to that effect, but contains no claim of fraudulent representations to induce the sale, except such as were averred to have been made by Lalcemeyer in pursuance of the alleged conspiracy. Ho additional defense was, therefore, proposed by the motion to conform the answer to the proof. But even if the proposed amendment set forth the additional defense claimed, the proof failed to establish such defense, for it was evident that the goods were not purchased in reliance upon any representations of Stackhouse or of Magnus, but upon the representation of defendant’s own employee, Lakemeyer.

The defense of conspiracy or of fraud not having been established, the exceptions to rulings upon evidence as to the value and quality of the goods, the qualifications of witnesses as experts, etc., do not require consideration. Much stress is laid upon the objection that it is not shown that the claim in suit passed to the assignee under the general assignment. The assignment was offered in evidence, but it is not printed in full in the case, and as there is no certificate that the case contains all the evidence offered upon the trial, but only a certificate that it contains all the testimony, we must assume that there was sufficient evidence before the referee to support his finding that the assignee was entitled to judgment. We have examined the other exceptions in the case, but they do not call for reversal.

The judgment should be affirmed, with costs.

Bischoff and Pryor, JJ., concur.


author: Bischoff, J.

text:
    John H. Woods, Resp’t, v. Charles G. Francklyn, App’lt.

      (New York Common Pleas, General Term,

      Filed June 6, 1892.)

    1. Principal and agent—Evidence of agency—Declarations.
    Declarations of an alleged agent are not admissible to prove his authority.
    3. Same.
    Defendant was the agent of one O., and as such agent employed one S. to take charge of certain buildings. Neld, that the fact that defendant was the depositary of the rents accruing to 0. from such buildings did not have the effect to'substitute him for 0. as principal so as to charge him with liability for the acts of 8.
    3. Same—Ratification.
    The ratification of a single act will not justify an inference that any further similar act will likewise meet with recognition, or that the assumed agent is thus empowered to subject the alleged principal to liability upon subsequent unauthorized contracts.
    Action to recover for work, labor and services performed at the request of defendant’s alleged agent. Appeal from the judgment of the general term of the city court affirming a judgment for plaintiff entered upon a verdict directed by the trial court.

      Ira D. Warren, for resp’t; Adrian H. Joline, for app’lt.

       Reversing 39 St. Rep., 197.

   Bischoff, J.

The decisive question in this case is whether plaintiff has established, by competent evidence, authority on the part of Stillman to bind defendant as his principal. In considering this question evidence of Stillman's declarations tending to show his authority to act for defendant should be eliminated, because it is admissible for no such purpose, but only for the purpose of showing credit was intended to be given to the defendant. Stringham, v. St. Nicholas Ins. Co., 4 Abb. Ct. App. Dec., 315; Marvin v. Wilber, 52 N. Y., 270; People's Bank v. St. Anthony’s R. C. Church, 109 id., 512; 16 St. Rep., 856. Outside such declarations the validity of the judgment depends upon facts substantially as follows:

Plaintiff performed certain work, labor and services in repairing the buildings 873 and 879 Broadway and 17 East Eighteenth street, which were owned by Sir Bache Cunard, upon Stillman’srequest and representation that he was authorized by defendant to employ plaintiff for such purpose. Of these premises Stillman had assumed full management and control at the request of the defendant; but the defendant, in making such request, acted for and as the agent of Cunard, the owner. Stillman did whatever he thought necessary for the preservation of the premises, caused repairs to be made, collected rents, paid expenses and remitted the balance to defendant for the owner, Cunard’s, account.

Prior to plaintiff’s last employment and the accruing of the claim in suit, he had performed similar services under precisely the same circumstances for which, at Stillman’s direction, he, on one occasion, rendered a bill to defendant, which was paid when presented.

It cannot be said that the facts recited would support an inference of Stillman’s authority to bind defendant, construed most favorably to plaintiff, despite Stillman’s apparent equivocation as a witness for him. It is obvious, though Stillman entered upon the agency of Cunard’s buildings at defendant’s request, that he was Cunard’s and not defendant’s agent The fact that defendant was the depositary of the rents .accruing to Cunard from the buildings no more had the effect of substituting defendant for Cunard as principal than would an agent’s deposit in any case of his principal’s funds with a banker for transmission create the-relation of principal and agent so as to charge the banker with liability for the acts of the depositor.

It is true that authority to do a particular act may be inferred by a course of dealing between an alleged principal and his assumed agent, as in a case where a principal has repeatedly recognized and approved of similar acts, Bank of Auburn v. Putnam, 1 Abb. Ct. App. Dec., 80; Wood v. A. & R. R. R. Co., 8 N. Y., 160; Hammond v. Varian, 54 id., 398; Olcott v. Tioga R. R. Co., 27 id., 546; Marine Bank v. Clements, 31 id., 33; but we are unable to find any sanction in principle or authority for holding that the-ratification of a single act would justify an inference that any further similar act would likewise meet with recognition, or that the assumed agent is thus empowered to subject the alleged principal to liability upon subsequent unauthorized contracts.

For this reason we must regard. defendant’s payment of plaintiff’s bill for services on a former occasion insufficient to justify the inference that Stillman had authority from defendant to employ plaintiff as his agent. The facts, therefore, did not authorize plaintiff’s recovery, and the motion to dismiss his complaint should have been granted.

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

Daly, Ch. J., concurs.


author: Bookstaver, J,

text:
    Herman H. Kipp, Resp’t, v. The East River Electric Light Co., App’lt.

      (New York Common Pleas, General Term,

      Filed June 6, 1892.)

    Corporations—Ultra vires—Contract nor funeral of employee.
    A superintendent of a corporation will not bo presumed to have authority to contract for the burial of an employee where it is not shown that the death occurred in the actual performance of duty and on the premises of the corporation.
    Appeal from a judgment rendered in the district court of the city of New York for the fourth judicial district.

      William H. Kelly, for app’lt; Peter Cook, for resp’t
   Bookstaver, J,

This action was brought for an undertaker’s hill for the expenses of the Suneral of one Tucker ordered by E. E. Dexter, the alleged general superintendent of the defendant The complaint alleges that Tucker was one of the employees of the defendant. This is put in issue by the answer, and as far as appears by the return there was no direct evidence given upon. the trial as to whether or not Tucker was an employee of the defendant at the time of his death, nor does the return show that he died while in the service of the defendant or upon its premises. Nor does it show anything in regard to the duties of Dexter as general superintendent or to what extent he was authorized to represent the defendant in any business. Nor was there any evidence to show that the defendant through its proper officers directed or empowered Dexter to contract the expenses in question. Under such a state of facts we cannot infer that Dexter, merely because he was the general superintendent of the defendant, was authorized to contract for the burial of an employee of the defendant, where it was not shown that the death occurred in the actual performance of duty and on its premises. It owed no other -or greater duty to an employee under such circumstances than does any other employer, and certainly it is not the duty of employers to pay the funeral expenses of an employee not dying on "their premises.

Besides the defendant was incorporated for the purpose of the manufacture and sale and leasing of appliances for electric lighting and the transmission of electricity for the production of heat, light and power; and to contract for funeral expenses where there was no legal liability to pay may be ultra vires. Jemison v. Citizens’ Savings Bank, 44 Hun, 412, 414,416; 9 St. Rep., 366 ; Brice’s Ultra Vires, pp. 28, 29; Dartmouth College v. Woodward, 4 Wheat., 518, et seq.; see also Schurr v. N. Y. & B. Investment Co., 45 St. Rep., 645, decided in this court, and authorities there •cited, where it was held that the contract there in controversy was -entirely beyond the scope of defendant’s business and powers and ■therefore void; also Davis v. O. C. R. R., 131 Mass., 258 ; Relfe v. Rundle, 103 U. S., 222 ; Alexander v. Cauldwell, 83 N. Y., 480. The principle that though the contract be ultra vires, yet having been performed by the plaintiff it is not open to defendant to resist its enforcement by one who has expended his labor on the faith of its validity, does not apply to this action. Schurr v. N. Y. & B. Investment Co., supra. Those decisions which hold that a defendant corporation is estopped from questioning the validity of a contract made by it, applies only when the contract has been executed for the benefit of the corporation, and that is not the case in this instance.

The judgment should therefore be reversed and a new trial ordered, with costs to abide the event. And this course is taken in this instance because upon the argument before us various facts were stated which do not appear by the return, and which may be proved upon such new trial. For instance, if the plaintiff died upon defendant’s premises, then at common law it would be bound to bury him, Regina v. Stewart, 12 A. & E., 778, where Lord Denman, in delivering the opinion of the court, said, “ It should seem that the individual under whose roof a poor person dies is bound to carry the body decently covered to the place of burial; he cannot keep him unburied, nor do anything which prevents Christian burial; he cannot therefore cast him out so as to expose the body to violation, or to offend the feelings of, or injure the health of the living; and for the same reason he cannot carry him uncovered to the grave." S. 0., 4 P. & D., 349; see also Rappelyea v. Russell, 1 Daly, 215; Pierce v. Swan Point Cemetery, 10 R. I., 227; S. C., 14 Am. Rep,, 667, 677 ; Rex v. Coleridge, 2 B. & Ald., 806; Chapple v. Cooper, 13 M. & W., 252. On the argument it was claimed that Tucker died while in the performance of his duties, upon one of the poles owned by the defendant or used by it Obviously the dictates of our common humanity require that one dying under such circumstances should be removed from the public gaze as soon as possible, and that his body should be disposed of by a Christian burial; and if the law imposes this duty on one under whose roof a dead body lies, much more would it impose that duty under the circumstances stated upon one owning the pole or having control of it

It was also claimed that the bill was too large considering the circumstances in life of the person buried. It is the general right of everyone, recognized as such by the common law, to have his-body carried, decently covered, from the place where it lies to a proper place of burial. See authorities before cited. But it needs the citation of no authority. It is now, and throughout all ages has been, the common dictate of humanity to pay proper-respect to the bodies of the dead. This feeling is not peculiar to Christians, but has been the common feeling of humanity through all time and of peoples of every religion. The patriarchs, when sojourners in the land, purchased burial places for their dead. The body of Jacob was carried up from Egypt with great pomp to be buried with his fathers. The burial of Patroclus, as recited in the Iliad, is but a single instance of the respect which the Greeks paid to their dead; and is equalled by the loving care of Priam, who went into the enemy's camp at night, guided by a. god, to ransom the dead body of Hector from Achilles, in order to-perform for it the customary funeral rites of the Trojans. Ho more touching or tragic scene is portrayed in all literature, than where Sophocles makes the slave wife Tecmessa, and the infant son of Ajax, the two weakest of mortals, protect the dead body of him who had been in life the most powerful of warriors from insult and dishonor at the hands of Agamemnon, the mightiest of the Greeks.

• If the plaintiff on the new trial is able to establish such facts as-would make the defendant liable at all, it would be liable for such an amount as would have secured proper and decent burial.

But for the reasons before given the judgment should be reversed and a new trial ordered, with costs to the appellant to-abide the event Bischoff, J., concurs.