text:
    George Munro, App’lt, v. Ormond G. Smith et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    'Trade-mark—Injunction.
    In the absence oí proof of an intention to deceive or that purchasers have actually been misled by a resemblance, if the two trade-marks are not to the eye of the court either altogether identical or so similar that the court considers the difference unsubstantial, an injunction will be refused.
    Appeal from a judgment of the special term dismissing the plaintiff’s complaint, with costs.

      Roger Foster, for app’lt; A. L. Sessions, for resp’ts.
   Barrett, J.

There can be no doubt that the plaintiff has acquired the exclusive right to the title Old Sleuth, The Detective,” as applicable to a work of fiction. Mor can there be any doubt of his right to couple with that name a picture or other token, and thus found a trade-mark in the combination of title and token. The difficulty here, however, is two-fold. First, the picture is not such a token but a mere illustration of a character in the book, Munro v. Smith, 55 Hun, 419; 29 N. Y. State Rep., 100; and, second, the defendants have not infringed upon the title “ Old Sleuth, The Detective,” as applied to a work of fiction. If they had infringed upon the title, then the copying of the picture, though such picture may be nothing more than an illustration, would be evidence of a fraudulent purpose. Indeed, if there were a doubt engendered by a variation in the title, that is, whether or not such variation was merely colorable, the pictorial context might properly be referred to, to solve such doubt.

In other words, the whole title page could be looked at to ascertain whether the defendants were appropriating the name and trade mark which the plaintiff had adopted to designate his publications. The real question in this case is just there. Have the defendants done this ? If they have, they should have been enjoined. But if they have acted innocently, and the resemblance between the respective title pages is so slight that there is no probability or likelihood of deception, the case was properly disposed of. It is clear that the plaintiff’s property rights with regard to the name of “ Old Sleuth ” are no greater than we have indicated. He had no property in the name as indicating authorship. Mr. Halsey has a perfect right to publish new novels from time to time, and to say that they are by the author of “ Old Sleuth, the Detective; ” or, using his nom de plume, by “ Old Sleuth.” And he may confer that same right upon the defendants. Nor has the plaintiff á property right in the picture of “ Old Sleuth,” that is, in the pictorial form or idea which we find on the title page, for the reason, already suggested, that that picture is not in any sense a trade mark indicating the publisher or his publications, but a mere illustrative feature of a particular work or. series of works of fiction. The question then is narrowed down to this: Would an ordinary purchaser of these stories be likely to be deceived by the defendants’ title page ? Would he, instead of a new story by “ Old Sleuth,” believe that he was purchasing “ Old Sleuth, the Detective,” or one of that series to which the plaintiff has appropriated the name “ Old Sleuth ? ” We think not We have examined the two covers or title pages and can see no reasonable ground for mistake on this head. The attention of the buyer would undoubtedly be called by the defendants’ cover to “ Old Sleuth ” and to “ Old Sleuth, the Detective,” and one who was acquainted with the stories in which “ Old Sleuth ” had figured might not unnaturally be expected to stop and look at this novel title page. But for what purpose ? Plainly to see if it was a new edition of the old story which he had previously read, or a new story in which the admired character would again figure.

And what would he find if he could read plain English ? Not at all a story called “ Old Sleuth, the Detective,” or a story in which that character was promised as one of the dramatis personae, but a story called “Bruce Angelo,” by “Old Sleuth.” He would see a picture of the alleged author and the name “ Old Sleuth, the Detective ” applied to that picture. He would see nothing of the plaintiff’s “ Old Sleuth Library,” but instead the defendants’ “ Secret Service Series,” and finally the publishers’ names, “Street & Smith,” plainly printed at the bottom of the page.

It is true that the learned judge at special term has found that the picture upon the defendants’ cover was copied from that upon the plaintiff’s, and that this was calculated to mislead a casual purchaser, or one purchasing a book in haste or without close observation, into mistaking the book for an addition of “ Old Sleuth, the Detective.” But he expressly refused to find that an ordinary purchaser would be likely to be thus misled. He also refused to find that the defendants thus acted fraudulently or in bad faith, or with intent to deceive buyers or to cheat the plaintiff. He also refused to find that the defendants have thus obtained profits, or that a continuation of their acts will cause the plaintiff irreparable injury so great that no damages in an action at common law would afford him any adequate remedy. There was, in fact, no evidence in the case that any purchaser ever was deceived, or that the plaintiff was injured in the slightest degree by the representations made by the defendants’ cover or title page. Indeed we have considerable doubt of the accuracy of the finding that even a casual or hasty purchaser could be deceived.

Under these circumstances the plaintiff was not entitled to an injunction. We do not concur in the opinion of the learned judge that even if the defendants’ cover was designed as a fraudulent imitation of the first number of the “ Old Sleuth Library,” and was calculated to deceive a purchaser of ordinary intelligence, the plaintiff could still have no relief. If these facts had appeared, we think the plaintiff would have been entitled to an injunction even without proof of actual sales to persons who were deceived.

In Edelsten v. Edelsten, 1 De G., J. & S., 200, Lord Westbury said that it was not “ necessary for relief in equity that proof should be given of persons having been actually deceived and having bought goods with the defendant’s mark under the belief that they were the manufacture of the plaintiffs, provided the court be satisfied that the resemblance is such as would be likely to cause the one mark to be mistaken for the other.” But, in the absence •of proof of the intention to deceive or that purchasers have actually been misled by a resemblance, if the two trade-marks are not to the eye of the court either altogether identical or so similar that the court considers the difference unsubstantial, an injunction will be refused. Coffeen v. Brunton, 5 McLean, 256. Several authorities were examind in Cope v. Evans, L. R., 18 Equity Oases, 151, and Vice-Chancellor Hall states the result in these words: That the law of the court is that it will not grant the injunction unless it is satisfied that there will be deception -or that there is a probability or likelihood of deception, or in Lord Kingsdown’s words, that what the defendant does is calculated to deceive. The burden of proof is on the plaintiffs, there being no proof of actual deception and no proof that the defendants’ object was deception.”

It follows, both from the findings and our own inspection of the covers, that a case for equitable interference was not made out. The finding with respect to a casual purchaser is not the criterion in a case like the'present. The rule has regard to the ordinary purchaser.

I agree with Sir George Jessel in Singer Manufacturing Company v. Wilson, 2 Ch. Div., 447, when he says:

“ I am not, as I consider, to decide cases in favor of fools or idiots, but in favor of ordinary English people, who understand English when they see it and are not deceived by any difference in type, but who have before them a very plain statement.”

There are, undoubtedly, cases where the law will consider the probable ignorance of the purchaser, such as where domestics are in the habit of buying kitchen soaps, and the like, and also cases where even the careless and unwary will be looked after. Colman v. Crump, 70 N. Y., 573. But novel readers, even of the “ Old Sleuth kind,” ought to be able to read plain English, to know what the cover of a book represents, and to get what they want The casual or hasty buyer who could be deceived by the defendants’ title page, and led thereby to purchase “ Bruce Angelo ” in the belief that he was purchasing “ Old Sleuth, the Detective,” or one of the “Old Sleuth Library” series, would certainly belong to one of the classes referred to by Sir George Jessel.

Our conclusion is that upon the findings of the special term, supported as they are by the evidence, there was no invasion of the plaintiff’s property rights in the title “ Old Sleuth, the Detective,” or “ Old Sleuth,” as applied to a work of fiction; no attempt to palm off the defendants’ publications as the plaintiff’s, no representation upon the subject calculated to deceive an ordinary purchaser, and no injury whatever.

If costs were to be awarded at all, the allowance was not unreasonable, considering that the case had been twice tried.

As to the award of costs, we think the special term properly exercised its discretion in view of the fact that the action was brought after the defendants had written to the plaintiff stating that they would in future dispense with the use of the picture complained of. When we consider, too, the absence of proof that any purchaser of the defendants’ books was ever deceived, the plaintiff should take the ordinary consequences of an unsuccessful litigation.

The judgment should, therefore, be affirmed, with costs.

Van Brunt, P. J., concurs in result; Bartlett, J., not voting.


source: Caselaw Access Project

author: Van Brunt, P. J.

license: Public Domain

text:
    John Parker et al., App’lts; v. Maria Linden, App’lt, and Mark Lithgoe et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    J UDGIDSNT—IRREGULABITY.
    In an action to construe a will it was found that one of the devisees was dead, hut before entry of judgment said heir applied for leave to defend, which was granted, hut before her time to answer had expired judgment was entered. Held, that such judgment was irregular and should be set aside.
    Appeal from judgment entered in this action, and from order denying plaintiffs’ motion to vacate the judgment as premature and for irregularity.
    Action to construe a will. On the trial it was found that one Jane Smith, one of the devisees, who bad left the country and had not been heard from in fifty years, was dead. Thereafter, but before the entry of judgment, said Jane Smith applied for leave, to come in and defend, which, leave was granted, and she was given until August 16, 1890, to serve her answer. On the 16th of July, 1890, this judgment was entered, directing that the property be turned over by the executors to the respondents.

      I. N. Miller, forapp’lts; A. J. SIcinner, for resp’ts.
   Van Brunt, P. J.

The question upon the appeal from the order is whether the court should have vacated the judgment which had been entered herein, it appearing that at the time of the entry of the judgment the time to answer of one of the defendants had not expired. It does not seem necessary to discuss at length any such proposition.

It is true that upon the trial of the case there had been, an adjudication that this defendant was dead. But it would seem that she was very much alive, notwithstanding the adjudication, and that she had appeared in the action and had been granted leave to answer the complaint, which time to answer had not expired at the time of the entry of the judgment She was a necessary party to the action; she was not in default, and the judgment therefore was clearly irregular and should have been set aside.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to set aside the judgment granted.

As for the appeal from the judgment, a motion having been made to set that aside for irregularity in reference to the additions made thereto, which motion was denied, and upon appeal the order entered thereupon reversed and the motion granted, it is not necessary to consider the same.

The appeal, therefore, from the judgment should be dismissed, without costs.

Brady and Daniels, JJ., concur.


author: Brady, J.

text:
    John A. Ferdinand, Pl'ff, v. The Mayor, etc., of New York, Def’t.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    Municipal corporations—Contract—Re-letting.
    A contract made by the city with plaintiff’s assignor in 1865 contained a provision that under certain circumstances it could be declared abandoned, and the work re-let, the contractor to pay any excess of cost if let at a greater expense, and to be paid the difference if re-let at less cost. Under this provision it was declared abandoned in 1871. In 1877 the city made a contract for work on the same street with other parties, in pursuance of an ordinance of the common council, but the contract called for more work than the former one. Held, that the latter contract could not be said to be a re-letting of the former contract, and that plaintiff had no right to recover thereon.
    Exceptions heard in the first instance at the general term.

      John 0. Shaw, for pl’fE; Gratz Nathan, David J. Dean and Woolsey Garmalt, for def’ts.
   Brady, J.

On the 1st of September, 1865, the defendants contracted with one Jno. S. Masterson to regulate and grade Sixty-sixth street from Eighth avenue to Broadway. In or about 1871 that contract was declared to be abandoned. It contained a provision which authorized the street commissioner to declare the work abandoned, if in his opinion the contract was not being properly carried out, and to re-let the work at the expense of the contractor, the contractor to pay any excess of cost should the work be re-let at a greater expense, and to be paid the difference should the work be re-let at a less cost. In 1877 the defendants made a contract with one John Mulholland for regulating, grading and setting curb and gutter stones and flagging sidewalks in Sixty-sixth street from Eighth avenue to the Boulevard, but this was done, as alleged in the answer of the defendants, pursuant to an ordinance of the common council.

It will have been observed that Masterson’s contract was made in September, 1865, and it appeared upon the trial that he did no work subsequently to the year 1867, leaving his work unfinished. For the purpose of this opinion, it may be assumed that under the authorities cited, Philip Brady v. The Mayor, 44 Hun, 511; 9 N. Y. State Rep., 211; John Murphy et al. v. Buckman, 66 N. Y., 297; Taylor v. The Mayor, 83 id., 625, the appellant, assignee of the original contractor, Masterson, would be entitled to recover the difference between the sum which was to be paid him if his contract had been performed and the expense of completing it, if .less than the original contract price, if the defendants had elected to complete the contract as provided by its terms. This assumption may be indulged in, for the reason that there is no proof in the record that the contract subsequently made with Mulholland was the exercise of the power of the completion suggested. The allegation is that the contract of Mulholland’s was the result of an ordinance of the common council, approved the 2d of July, 1877, which was about twelve years after the contract made with Masterson, and which ordinance embraces more than was contemplated by the latter agreement, namely, setting curb and gutter stones and flagging sidewalks on Sixty-sixth street. When the counsel for the defendant moved to dismiss the complaint herein, his statement was that the plaintiff had not proved anything, except that there was a contract made and two or three assignments of it, and that Mr. Masterson had done some work at some time. A colloquy followed before the complaint was dismissed, but nothing more affected the proposition stated by the learned counsel for the defendant. Careful examination of the case fails to disclose any evidence of re-letting of the first contract, or an election to proceed under it and complete it. Tne letter, which was offered September 4, 1875, in no way affects this question, and it would be secondary evidence under any circumstances if Mr. Masterson was alive. He could be called upon to show that, notwithstanding the assignments of the contract, he had been so connected with it subsequently as to make it reasonably certain that which he did was done under the contract, and not under that subsequently made with Mr. Mulholland, pursuant to the ordinance of the common council, to which reference has been made.

For these reasons the exceptions should he overruled and the defendant have judgment upon the verdict, with costs.

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


author: Per Curiam.

text:
    Catharine Smith, Resp’t, v. Frederick Wood, App’lt.

      (New York Common Pleas, General Term,

      Filed February 2, 1891.)

    Partnership—Where partner’s name does not appear he is not entitled TO SHARE IN GOOD WILL.
    Two persons, one of whom was confessedly insolvent, formed a partnership. It was agreed that the insolvent’s name should not appear in the firm dealings and that the real estate should he held in the name of the solvent partner. In an action for an accounting, Held, that the insolvent was not entitled to share in the good Will of the business, and that the real estate, for the time being, should remain in the possession of the solvent partner, who should be appointed receiver.
    Appeal from an interlocutory judgment of the equity term of this court.
    The following is the opinion below :
    Bookstaver, J.—This action is brought to dissolve a copartnership claimed by the plaintiff to have been formed between her husband, the assignor John Smith, with Frederick Wood.
    The only question to be determined is one of fact. There is no-dispute that sometime prior to August, 1887, said Smith and said Wood made some kind of an agreement. Plaintiff contends that that agreement was for a copartnership, then and thereto be formed, to be conducted under the style of Frederick Wood. Defendant denies this, and contends that the agreement was executory only, and was conditioned that the said Wood should take the said Smith into copartnership only when he should get clear of all his debts.
    Both parties testify very positively as to their understanding of what this agreement was, and each is in opposition to the other. There was no one present at the time the agreement was made, and it was wholly oral. It was well known to both of the parties at the time of making the agreement that Smith was insolvent, and owed a considerable sum of money.
    Under these circumstances it was impolitic that Smith’s name should appear as a partner; and I incline to the opinion that the plaintiff’s version of the agreement is the true one, and that there was a present copartnership of the plaintiff, with the understanding that Smith’s interest in the same should be kept secret until he had effected some kind of a compromise with his creditors. This I think best reconciles all the facts and testimony in the case. It accounts for the fact that Smith devoted his time to looking for a place where they could conduct business; that when he found it, he called Wood’s attention to it; that they together negotiated for it; and explains why the leasehold was taken in the name of Wood only; and also why Smith invested $1,500 of his wife’s money in the purchase; and also all his tools, machinery and stock, which before that time had been fully examined by the defendant Wood. It also accounts for the fact that Wood introduced Smith to the bank as his superintendent, and gave him a power of attorney, conferring upon him (Smith) unlimited right to draw money from the bank account as he saw fit, and he could draw therefrom for his own purposes such sums as he desired, which is inexplicable on the defendant’s theory of the case. It also accounts for Wood’s denial of the copartnership when the subject was brought to his attention, and for the various acts of dominion which Smith exercised in the business.
    I think, too, the fact ■ of the employment of the bookkeeper, and the way in which he made up his books, of which Wood must have had some knowledge, is strongly corroborative of the plaintiff’s contention.
    My judgment, therefore, is in favor of the plaintiff, and that there should be an accounting, between the parties. But inasmuch as Wood’s name only appeared in the business on such an accounting, no reckoning should be taken of the good will of the business, and the same should not in any way enter into the account. And the leasehold property should for the present remain in the possession of Wood, and that he be appointed the receiver, unless strong reasons are shown by the plaintiff in opposition thereto.

      Artemas B. Smith, for app’lt; Jeroloman & Arrowsmith, for resp’t.
   Per Curiam.

The judgment should be affirmed upon the opinion of the court below.

Allem, Bisohoff and Pryor, JJ., concur.


author: Bischoff, J.

text:
    George H. Meyers et al., Resp’ts, v. Lena Stix et al., App’lts.

      (New York Common Pleas, General Term,

      Filed February 2, 1891.)

    1. Release—When obal belease valid.
    The defendants, copartners, were insolvent, and among their creditors were plaintiffs. An oral agreement was made between plaintiffs, defendants and a third party, one Cullman, under which the defendants transferred to Cullman all their assets, he at the same time promising to pay, and subsequently he did pay, all defendants’ creditors, excepting plaintiffs; the latter having at the same time, in consideration of said agree ment, orally waived and released their elam against defendants. Held, that plaintiffs’ promise to release defendants, made directly to the latter, bound the plaiutiffs.
    2. Same—Rot in waiting—Peeeobmance.
    As the agreement had been performed it was too late for plaintiffs to set up want of mutuality or that they were not benefited by the agreement, or that it was not in writing or that Cullman’s promise to pay the debt of another person (defendants) was not in writing and subscribed by him.
    Appeal from judgment of city court, entered upon a verdict for the plaintiffs, rendered by direction of the court.

      Samuel W. Weiss, for app’lts; Charles Meyers, for resp’ts.
   Bischoff, J.

This action was brought by the plaintiffs to recover the-sum of $306.79, the balance of an account for goods sold and delivered by the plaintiffs to the defendants.

The answer did not deny the indebtedness, but set up as a defense to plaintiffs’ claim an alleged agreement madé prior to the commencement of the action, pursuant to the terms of which, for a sufficient consideration, the defendants claimed to have been released and discharged from the payment of the demand sued ■ upon.

On the trial the affirmative was on the defendants, and the only evidence given in support of the defense was the testimony of one Joseph F. Cullman. On this evidence" the defense rested, and the trial justice thereupon directed a verdict in favor of the plaintiffs. The defendants_ then moved upon the minutes to set aside the verdict and for a new trial, upon the ground that the verdict was contrary to the law and to the evidence. This motion was denied, and from the judgment entered upon the verdict and from the order denying a new trial, the defendants appealed to the general term of the court below, where the judgment and order were affirmed.

From an. examination of the opinion on the motion for a new trial, it is apparent that the learned justice misapprehended the testimony of the defendants’ witness Cullman. He says: “ The defendants did not know of the transaction said to have operated as a release until they interposed their plea setting it up.” This conflicts with the testimony for the defense, which for the purposes of this appeal must be assumed to be true. Cullman distinctly and explicitly testified that at the time of entering into the agreement to release the defendants, there were present, of defendants’ firm, Elias Meyers and Jacob W. Mayer. The testimony is as follows: “ The following evening we met again at the office of Meyers, Stix & Co.; at this first conversation there was present, I think, Mr. Abe Meyers only of Meyers’ Bros., and besides Elias Meyers, Robert Stix, Jacob W. Mayer, the bookkeeper, and Jacob F. Cullman; they met by appointment the following day, and there was present there Abe Meyers, George Meyers, one of the plaintiffs, I think that is his name, and Charles Meyers. We again referred to the condition of the firm. He reprimanded Meyers, Stix & Go., again, for having returned goods as promiscuously as they did, and having reduced their indebtedness as they did, and he said: “ Well, how shall I arrange this; or how can it be arranged ? ” I said to them, “See here: your <assets are about $6,000; we are morally responsible for notes of $7,500, discounted at the Seventh Ward Bank; if you will transfer your assets to us, we will take care of those notes and release you from all indebtedness thereon; and I said to the Meyers Bros, then, and further than that, if you will release your claim, which is only a bagatelle, we will lift the balance of the merchandise indebtedness as it becomes due; to which Mr. Meyers said : “ Will you?” I said, '“We will.” He said : “If you will, we, Meyers Bros., release our claim, we relinquish our claim, or waive our •claims.”

The foregoing testimony, we think, establishes the fact that at the time of the making of the alleged agreement for the release of the defendants there were present George H. Meyers, one of the plaintiffs, Elias Meyers and Jacob W. Maver, two of the defendants, and Joseph F. Cullman. The statement in the opinion of the trial justice to the effect that the defendants did not know of the alleged agreement until after the commencement of this action appears to be irreconcilable with the evidence, and this error may have induced the direction of a verdict for the plaintiffs, as well as a denial of the motion for a new trial, and has, probably, misled the justices sitting at the general term of the court below. The facts as we understand them to be established by the evidence are, that George H. Meyers, one of the plaintiffs, with Abe Meyers, who appears to have acted for the plaintiffs, Joseph F. Cullman, and Elias Meyers and Jacob W. Mayer, two members of defendants’ firm, met pursuant to appointment at the business office of the defendants’ firm, and a tri-lateral verbal agreement was then and there entered into between the plaintiffs of the one part, Joseph F. Cullman of the second part, and the defendants’ firm, Meyers, Stix & Co., of the third part, to the effect that the defendants’ firm should transfer all their assets to Cullman, in consideration of which transfer Cullman was to pay the claims of all creditors of defendants’ firm excepting the plaintiffs, and the latter, in consideration of the transfer by the defendants’ firm and Cullman’s promise to pay the creditor’s claims, were to waive their claim against the defendants’ firm and release them from the payment thereof.

It also appears that defendants’ firm, in pursuance of their promise, transferred their assets to Cullman, and that Cullman, pursuant to the promise on his part, and prior to the commencement of this action, paid all outstanding claims against the defendants’ firm, except that of the plaintiffs; hence, there does not appear to-be any tenable ground for holding that plaintiffs are not bound to abide by their promise to abstain from the enforcement of the claim in suit.

The promise to waive their claim, and to release defendants’ firm therefrom was made not only to Cullman but to the defendants as well, and the rules governing the decision in Lawrence v. Fox, 20 N. Y., 268, and the cases following that, and those distinguished therefrom, can have no application to the case now before us. The class of cases referred to are those wherein persons-for whose benefit the promise was made, but who were not privy to the contract, sought to enforce the agreement, while in this case the promise was made directly to the defendants who were parties to the agreement of which plaintiffs’ promise was a part.

Before performance on the part of Cullman by the payment of the outstanding, obligations of defendants’ firm it might have been urged that the agreement entered into as above stated was inoperative for want of mutuality, because of the fact that the creditors of the defendants’ firm, being strangers to the agreement, could not have enforced Cullman’s promise to pay their claims, and also that as Cullman’s promise to pay such claims was not _ in writing and subscribed by him, it was void under the provisions of the Statute of Frauds requiring all promises to answer for debt, default or miscarriage of another person to be in writing and subscribed by the party to be charged thereby. See Revised Statutes, Banks Bros. 7th ed., vol. 3, p. 2327.

It is too late however for the plaintiffs to urge as an excuse for their withdrawal • from the arrangement entered into that the agreement was inoperative for want of mutuality, after the other parties to the agreement have fully and completely performed the promises on their part made respectively in consideration of plaintiffs’ promise, and in full reliance upon the performance of that promise.

“ When the defendant has had the benefit of the consideration for which he bargained, it is no answer to an action brought ■against him to say that the plaintiff was not bound by the contract to do the act. Thus in the case of guarantees. Suppose I say ‘ if you will furnish goods to a third person, I will guarantee the payment;’ there, you are not bound to furnish them; yet, if you do furnish them in pursuance of the contract, you may sue me upon my guarantee. So, if a person says, ‘ in case you choose to ■employ this man as your agent for a week, I will be responsible for all such sums as lie shall receive during that time, and neglect to pay over to you ’ the party indemnified is not therefore bound to employ the person designated by the guarantee; but if he employ him, then the guarantee attaches and becomes binding on the party who gave it.” Addison on Contracts, vol. 1, § 1, paragraph 18 ; see also Parsons on Contracts, vol. 1, page 448, etc.

In Willetts v. Sun Mutual Ins. Co., 45 N. Y., 45, it was held that though a promise be void when made because the promisee was not bound to do the act in consideration of which the promise was made, it will, nevertheless, become binding and operative if the promisee do the act before the promise is withdrawn.

And in Sands v. Crooke, 46 N. Y., 564, Judge Rapallo, delivering the opinion of the court (unanimously concurred in), says: “ But assuming that no obligation on the part of the plaintiffs was created at the time defendant’s promise was made, and that his promise or guarantee was merely on condition that the plaintiffs should perform the specified acts, yet the acceptance of the guarantee, and full performance under it of the conditions, would render it obligatory upon the defendant.”

And again, in White v. Baxter, 71 N. Y., 254, Judge Rapallo says: “ After the promisor has had the benefit of the consideration for which he bargained, it is no defense to say that the promisee was not bound by the contract to do the act.”

Judge Andrews also, in commenting on the rule maintained in the cases cited, says approvingly: “When a defendant has actually received the consideration of an agreement by a voluntary performance of an act by the other party, upon his promise or suggestion, such performance constitutes a consideration which will uphold the defendant’s promise.”

The promise of the plaintiffs was substantially as follows: If you (Meyers, Stix & Go.) will transfer your assets to Cullman, and if you (Cullman) will pay all outstanding obligations of Meyers, Stix & Co., excepting the one to us, we (Meyers Bros.) will waive our claim against Meyers, Stix & Co., and agree to release them from the payment thereof.” It remained optional with Meyers, Stix & Co. to transfer their assets to Cullman, to whom they were in nowise indebted, and for Cullman to pay the outstanding obligations of Meyers, Stix & Co. . It not appearing that plaintiffs’ promise was withdrawn before performance by Meyers, Stix & Co. and by Cullman of the acts constituting the consideration therefor, the plaintiffs' promise became obligatory, and they cannot now assert their claim in defiance of their agreement to waive it and to release the defendants from all obligations thereunder.

It is not sufficient for plaintiffs to contend that they derived no benefit from the performance of the other parties to the agreement. It was sufficient for such other parties to do something which they were under no legal obligation to do, and notwithstanding that the performance of these acts resulted exclusively in a benefit to one or more of the parties to whom the promise was made.

The principle underlying this case is not distinguishable from that upon which Therasson v. Peterson, 2 Keyes, 636, was decided. In. that case it appeared that the plaintiff and other creditors had agreed to release the defendants from the payment of their respective claims in consideration of the defendants’ assignment of all their partnership effects to three of the creditors named, in trust to be converted into money and divided pro rata among the creditors named, and the court unanimously held this agreement binding as an accord and satisfaction, and the defendants discharged from further payment.

We know of no statute pursuant to the provisions of which an agreement to waive or release a demand growing out of a simple contract, or for the accord and satisfaction of such a demand, is required to be either in writing or under, seal, and at common law to render such agreement or release-effectual it was only requisite that it should be founded upon a sufficient consideration. If the agreement or release-was under seal, the seal itself, and without further proof, imported a consideration. But proof of a consideration other than that imported by the seal was sufficient to discharge the debt,, though the promise to discharge the debt was verbal.

The foregoing views render the reversal of the judgment and order appealed from inevitable.

, The order of the general term of the city court affirming the-judgment, and affirming the order denying the motion for a new trial, and such judgment and order are hereby reversed, and a, new trial ordered with costs to abide the event.

Daly, Ch. J., and Pryor, J., concur.


author: Bookstaver, J.

text:
    Daniel McCampbell, Resp’t, v. The Cunard Steamship Co., Limited, App’lt.

      (New York Common Pleas, General Term,

      Filed February 2, 1891.)

      1. Negligence.

    Plaintiff, who had had experience as a longshoreman, was injured hy the slipping of some drums of soda, weighing 600 pounds each, which ho was bringing down an inclined gangway upon a platform truck from defendant’s vessel. Some wedges which had been placed in front of the drums and also of the wheels of the truck slipped and caused the drum to slip forward. Held, as this manner of unloading had been safely practiced for years and no defects were shown in the truck or gangway, plaintiff could not recover.
    2. Same—Duty op master.
    The platform truck being a simple construction and reasonably safe, the defendant was not bound to furnish another style or to instruct plaintiff in the use of this one before allowing him to use it.
    ' 3. Same—Negligence of fellow servant.
    The stevedore in charge of the unloading directed plaintiff and other workmen who were with him to leave upon the drums the sling with which they had been raised out of the hold until they (the workmen) had removed the drums to the wharf. They did not do this. Had they done so the accident probably would not have occurred. Held, that defendant was not liable for their failure to do so.
    Appeal from a judgment entered on a - verdict in favor of the plaintiff, and from an order denying a motion for a new trial.

      S. F. Hyman, for resp’t; Frank D. Sturges, for app’lt.
   Bookstaver, J.

When the plaintiff rested, and again when all the evidence was in, the defendant moved to dismiss the complaint on the following grounds: (1) That there was no evidence to charge defendant with any negligence in supplying a proper and reasonably safe appliance for the work to be done; (2) that the injury was occasioned through the fault of a fellow employe if there was any negligence, and (3) that it was one of the risks incident to the employment, which was as apparent to plaintiff as to defendant. These motions wer,e denied, and defendant excepted. These exceptions raise the only questions to be considered on this appeal.

The plaintiff was a longshoreman of some years experience at the time he received the injury. On the morning of August 23, 1883, he was engaged in trucking fruit, etc., on defendant’s wharf in this city; after he had been working at this for a short time, Mr. Craven, the stevedore of the defendant, directed him and a longshoreman named Commorford to take a four-wheeled platform truck pointed out to them by him to the deck of the Gallia, then lying at the wharf, and with it to remove certain drums of caustic soda. In order to do this, it was necessary to go down an inclined gangway about twenty feet long, and which was seven or eight feet higher where it rested on the vessel than the wharf end of it. When the plaintiff and his co-laborer reached the deck of the new vessel, two drums of the soda, weighing 600 pounds each, were placed upon the platform of the truck and a joist about four inches in height, called a chock, was placed by his fellow workman upon the platform in front of the first drum, and similar chocks were inserted between the spokes of the hind wheels in order to lock them while going down the gangway. When everything was adjusted, word was given by his co-laborer to go ahead, and the plaintiff taking hold of the tongue of the truck started down the gangway; for some cause the chock slipped forward and the drums rolled off the truck and down the gangway, catching one of plaintiff’s feet and breaking some of the bones.

It was not claimed on the argument that there was any fault in the gangway or that it was too short, making the incline too steep; the evidence does not show that plaintiff slipped or had any difficulty in maintaining a firm foothold on account of the incline. According to plaintiff’s contention, both at the trial and on the argument of the appeal, the sole negligence of the defendant consisted in the stevedore’s direction to plaintiff and Oommorford to use a platform truck instead of two-wheeled trucks in doing the work. It is claimed that two-wheeled trucks would have been safe, while the platform truck was not. It is true that so long as the workman stood upright, a cylindrical body placed on a two-wheeled truck could not roll forward while going down an incline, as the arms of the truck would prevent it. But it must be borne in mind that the articles to be moved were heavy, weighing 600 pounds each, that no part of this weight would have to be supported by the workman using a platform truck, while a considerable part of it would would have to be sustained by a workman using a two-wheeled one, especially when going down an incline; that this weight would lender him more liable to stumble or slip and make it harder to recover himself if he did; if he fell, the drum would certainly roll forward and probably over a prostrate man, with the chances in favor of a more serious injury than was suffered in this case. In view of all the facts it seems to us that a reasonable and prudent, man might,- in the exercise of a sound judgment, well have determined not only that a platform truck made the work lighter for the laborer, but safer. If there was any error in judgment in making the selection by a fellow workman, the master would not be liable. Kenny v. Cunard S. S. Co., 52 Supr. Ct., 434.

The test of the defendant’s responsibility, however, is not whether another truck might have been safer, but whether the one used was reasonably safe and suitable. The defendant was not required to furnish or use the best kind of truck and cannot be held liable unless its ngligence is affirmatively shown to have caused the injury. Negligence in supplying apparatus cannot fairly be inferred where injury cannot reasonably be anticipated from its use. Burke v. Witherbee, 98 N. Y., 562; Marsh v. Chickering, 101 id., 396; Sweeney v. Berlin, etc., Co., 101 id., 520; Hickey v. Taaffe, 105 id., 26; 6 N. Y. State Rep., 426; Laffin v. Buffalo & S. W. R. R. Co., 106 N. Y., 136; 8 N. Y. State Rep., 596; Stringham v. Hilton, 111 N. Y., 188; 19 N. Y. State Rep., 621; Byrnes v. N. Y., L. E. & W. R. R. Co., 113 N. Y., 251; 22 N. Y. State Rep., 936.

The platform truck in question was an ordinary flat top four wheeled truck, with a long handle, such as is in common use everywhere ; as far as the testimony shows it was in good order and was of the kind that had been used for years in work like that in which plaintiff was engaged at the time, and yet no previous accident arising from such úse is shown. When trucking drums of soda or other cylindrical bodies, wooden chocks or wedges were placed by the laborer in front of the drums to prevent their rolling and the wheels had also been chocked just as was done in this case. There is no suggestion that the chocks were not proper and sufficient; the drums did not roll over the one in front of them, but for some cause it slipped forward on the platform. Whatever that cause might have been, the evidence does not show that any such accident had happened before, although the same procedure had been in use for years; and from the absence of previous accidents we think it must be held as a matter of law that the appliances used were reasonably safe and suitable.

But the plaintiff claims he had never used platform trucks before for any purpose, and had never trucked drums of caustic soda. If the machinery used by the master is intricate, or the use of it involves peril which is not open and obvious, it is his duty to cause his servant to be properly instructed in its use and to give him proper notice of the latent peril or defect But we do not think that a common platform truck can be regarded as in any sense intricate and the fact that a drum will roll down hill must be apparent to the dullest intellect. The plaintiff was a longshoreman of ten years experience; had seen such trucks used, if he had not used them himself, for years, and was or should have been familiar with their construction and use. He drew the truck up the gangway, knew he was to draw it down again when loaded, saw it loaded, the chock placed in front of the drums, and understood the reason why they were chocked. If when he started down the gangway there was any risk to be anticipated from doing so with the truck so loaded and chocked, it must have been as apparent to him as to the stevedore. Yet he undertook the work and we think must be held to have accepted the risk whatever it was. Sweeney v. Berlin, supra; Cahill v. Hilton, 106 N. Y., 512, 518; 11 N. Y. State Rep., 26; McGrath v. Walsh, 4 N. Y. Supp., 705; 23 N. Y. State Rep., 63; De Forest v. Jewett, 88 N. Y., 264, 269.

The drums rolled off because the front chock slipped out of place. The experience of years without accident, we think, establishes the reasonable safety of the procedure adopted on this occasion, and that the only fair inference from the evidence is that the chock was not placed in position with proper care. But this was done by Commorford and the gangmen who were fellow workmen with the plaintiff, and the defendant is not liable for their negligence. Ford, Administratrix, v. L. S. & M. S. R. R. Co., 117 N. Y., 638; 27 N. Y. State Rep., 246; Rose v. R. R. Co., 58 N. Y., 217; Besel, Administratrix, v. N. Y. C. & H. R. R. R. Co., 70 N. Y., 171.

_ It also appears from the evidence that Craven, the stevedore, directed plaintiff and his fellow workmen to leave the sling with which the drums had been hauled from the hold on them until they reached the wharf, which plaintiff and his fellow workmen neglected to do. It is apparent that had it been left on them they could not have rolled so easily, and even if_ the chock had not been properly placed might and probably would have prevented the accident. But this was also negligence, for which the defendant was not liable.

In our judgment, the facts proved on the trial of this action were not such as to warrant a fair, and reasonable inference of negligence on the part of the defendant, and that the complaint should have been dismissed. A scintilla of evidence or a surmise that there may have been negligence on the part of the defendant would not justify the judge in leaving the case to a jury. Baulec v. R. R., 59 N. Y., 356, cited in Dwight v. Germania Co., 103 N. Y., 359; 3 N. Y. State Rep., 115; Sutton v. R. R., 66 N. Y., 247; Hayes v. R. R. Co., 97 N. Y., 259.

Having arrived at this conclusion, it is unnecessary to determine whether or not Craven, the stevedore, was a fellow workman with plaintiff.

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

Bischofe and, Pryor, JJ., concur.


text:
    Florence Cushman, Resp’t, v. The Family Fund Society, App’lt.

      (New York Common Pleas, General Term,

      Filed February 2, 1891.)

    1. Assignment—Plaintiff mat show absolute - conveyance to have BEEN MADE AS A SECURITY.
    The plaintiff sued at law in the city court of New York for a balance upon a policy of life insurance issued by defendant. The insured had by an assignment, absolute in form, transferred the policy to a creditor of his, but as collateral security, and the defendant had paid the creditor a part of the policy in full of this debt. Held, that such an action was not one in equity, and that plaintiff might show, in an action at law, that a conveyance absolute on its fade was made as a security.
    3. Insurance (Life)—Assessment company—Need not show that as" SESSMENT WOULD PRODUCE AMOUNT.
    The policy, called a *• bond,” bound defendant to maintain a death fund which, if derleted, must be supplied by asséssments, tobe levied by defendant. Held, that plaintiff was not bound, as a condition of recovery, to show that defendant had in the death fund money sufficient to pay his claim, nor that an assessment, if levied, would have produced the required amount.
    Appeal from a judgment of the general term of the city court, affirming a judgment entered upon a verdict for the plaintiff rendered by the direction of the court.

      George Wilcox, for app’lt; A. Breniice, for resp’t.
   Bischoff, J.

Defendant, a corporation organized under the laws of the state of New York, and transacting business as a co-operative, or assessment, life insurance company, about July 27, 1885, admitted one William H. Cushman to membership, and thereupon issued to him its obligation, designated a bond. By the terms of this bond the defendant covenanted that it would maintain a death fund, out of which the claims of the beneficiaries of deceased members should be paid, and that eighty per centum of all assessments collectible from its members should be applied toward the maintenance of such death fund, the remaining twenty per centum to constitute a reserve fund, which should only be resorted to when the mortuary claims presented should exceed the ordinary risks. Defendant further covenanted that whenever the death fund should become diminished or depleted, the same should be supplied from assessments to be levied, upon its persistent members, and that within sixty days after receipt of satisfactory evidence of the death of the insured, it would pay to his legal representatives or assigns, from the death fund at the time of said death, the sum of $5,000. Before his death Cushman, by two different instruments under his hand and seal, assigned his bond to one Engelman, the assignments being in absolute terms, and apparently disposing of all interest in the moneys to grow due thereunder. Some time thereafter Cushman died, intestate, and his widow, Annie Cushman, was duly appointed administratrix of his estate by the surrogate of the county of New York. Satisfactory evidence of the death of Cushman having been given, the defendant Engelman was paid by it the amount of two certain promissory notes made by the insured, with accrued interest, amounting together to $3,110.21, upon which payment Engelman surrendered the bond and assignments, and executed and delivered to the defendant an instrument under his hand and seal purporting to be a release of all his rights, claims and demands upon said bond.

The insured had left him surviving, Annie Cushman, his widow, and this plaintiff, Florence Cushman, and Douglas Cushman, two children, his only next of kin. Of the face value of the bond after deducting the amount paid to Engelman, defendant paid to the widow $666.66, an amount equal to one-third of the remainder with the accrued interest added thereto, and thereupon, under the direction of the surrogate, the widow, as administratrix of the estate of said obligee, William H. Cushman, assigned to the plaintiff one equal third part of all moneys due, or to become due, from the defendant upon its bond as aforesaid, subject, however, to the claim of said Engelman, to whom, it was alleged in the last mentioned assignment, the bond liad been transferred by the insured as collateral security for the payment of an indebtedness of about $3,000. Claiming under the assignment to her, and alleging the assignment to Engelman to have been as collateral security for the payment of a debt, the plaintiff brought suit in the city court of New York to recover the sum of $629.91 and interest, which amount she claimed to be due her from the defendant, and which in her complaint she alleged the defendant had kept and retained and holds for her benefit Upon the first trial herein, it appearing from the assignments to Engelman that they were absolute on their face, defendant contended that the action should have been brought in equity; that it was essential to plaintiff’s right of recovery that the assignments, in terms absolute, should be decreed to have been intended and given as collateral security only; that such relief could only be had in equity, and the city court being without equity powers had not jurisdiction over the subject-matter of the action, and that the same should be for that reason dismissed. A doubt as to his right to entertain the action having arisen in the mind of the trial justice, he directed a dismissal of the complaint, the exceptions in the first instance to be heard at general term, which sustained the exceptions and ordered a new trial, holding in effect that parol evidence tending to show that an instrument absolute on its face was given as security only is admissible in a court possessing common law jurisdiction only; and that it, therefore, had jurisdiction to grant plaintiff the relief demanded. See Cushman v. Family Fund Society, 28 N. Y. State Rep., 757.

Upon the second trial of this action the execution and delivery by the defendant of its bond to William H. Cushman was admitted, the bond itself being admitted in evidence, as were also the assignments to Engelman, the letters of administration on the estate of William H. Cushman issued to his widow, Annie Cushman, the order of the surrogate directing an assignment to the plaintiff by the administratrix, the last mentioned assignment to plaintiff, Engelman’s receipt to the defendant for $3,110.21 by which he also undertook to release all his “ rights, claims and demands ” under the bond in question, proof of the death of Cushman respecting a claim under another bond of the defendant, and a waiver of further proof of death under the bond sued upon. The payment of $666.66 to Annie Cushman was admitted by the answer, and it abundantly appeared from the testimony of plaintiff’s witnesses, Miller and Kitzenger, that the assignments to Engelman were made as collateral security only, and that at the time of the payment to him Engelman disclaimed any greater interest than the amount of his claim against Cushman. Upon the foregoing evidence and admissions the plaintiff rested and defendant’s counsel thereupon moved the dismissal of the complaint, urging as grounds for his motion the following:

1. That the court was without jurisdiction; that as an essential requisite to plaintiff’s right to recover, the court was called upon to adjudge the assignment, absolute on its face, to have been given for collateral security only, and that such relief could only be granted by a court having equity powers.

2. That the claim under the bond in question was indivisible, and a suit by the assignee of only a part thereof was not maintainable.

3. 'That it appears that the defendant was released by an instrument under seal, and that such release cannot be attacked in this action.

4. That there was a non-joinder of parties plaintiff and defendant.

5. That plaintiff has not established a cause of action.

The motion to dismiss was denied and thereupon defendant’s counsel asked the court to direct a verdict for the defendant. This motion was also denied and on motion of plaintiff’s counsel the court directed a verdict for the plaintiff for the full amount claimed, with interest. To the refusal to direct a verdict for defendant and to the direction of a verdict for plaintiff, defendant’s counsel also duly excepted, but made no request to have the facts submitted to the jury. By his request for the dismissal of the complaint and for the direction of a verdict for the defendant, the defendant must be deemed to have conceded that there were no facts in dispute, and we are therefore only called upon to ascertain whether the facts proved justified plaintiff’s recovery. Winchell v. Hicks, 18 N. Y., 558; Dillon v. Cockcroft, 90 id., 649; Ormes v. Dauchy, 82 id., 443; Muller v. McKesson, 73 id, 195. And if there is any evidence justifying the verdict the judgment must be sustained. See cases cited above, and Leggett v. Hyde, 58 N. Y., 272-275; Koehler v. Adler, 78 id., 287; Barnes v. Perine, 12 id., 18;. Stone v. Flower, 47 id., 566; Royce v. Watrous, 7 Daly, 87.

There is no force in defendant’s contention that there was a non-joinder of parties. To have availed himself of such an objection the question should have been raised either by demurrer or answer. See Code of Civil Procedure, §§ 488 and 498. A failure to avail himself thereof by demurrer or answer precludes the defendant from subsequently making the objection. Ibid., § 489. And the court “ may determine the controversy as between the parties to it, where it can do so without prejudice to the rights of others.” Ibid., § 452.

And an assignee of part of a demand can maintain an action to recover the portion assigned to him. See Risley v. Phenix Bank of New York, 83 N. Y., 329, and cases cited.

Engelman’s release.of the defendant in terms undertook no more than to discharge the defendant fronl liability upon such rights, claims and demands as he had acquired under the bond. If the bond and the money to grow due thereon vested absolutely in him, defendant was discharged from all further obligation. If he had but a qualified interest, his release in plain terms discharged only such interest as he had and could not operate to release defendant from the payment of any balance remaining after payment of Engelman’s demand. Necessarily, then, the validity of this objection to plaintiff’s right of recovery is dependent upon the validity of defendant’s contention that the assignment to Engelman was absolute. If the latter fails the former must fall with it.

The foregoing disposes of the second, third and fourth grounds urged by defendant for a new trial and for a direction of a verdict for defendant.

The fifth ground was to the effect that the facts proved were insufficient to entitle plaintiff to a recovery, and upon the argument of the appeal in support of this contention defendant’s counsel maintained that it was incumbent upon the plaintiff to show that upon Cushman’s death the defendant had in its death fund sufficient money to meét the claim under the bond in suit, or that an assessment, if levied by the defendant upon the persistent members, would have produced a sufficient amount. Wc do not concur in this view. Precisely the same contract received the careful consideration of the court of appeals in the case cited by defendant’s counsel, Darrow v. Family Fund Society, 116 N. Y., 537; 27 N. Y. State Rep., 474; but that case does not go to the extent relied upon' by the defendant. It was there contended by the defendant that the beneficiary, under its bond, could not recover in an action for the amount upon proof that it had refused to levy an assessment upon its members to meet the claim, and that the only remedy of the beneficiary is in a court of equity, to compel the society to levy and collect the assessment. This contention, was decided adversely to the. defendant and the decision, so far as can be ascertained from the opinion, did not extend further. In Munger v. Shannon, 61 N. Y., 251, the defendant had promised to pay plaintiff’s demand out of the profits of a copartnership, but he had not bound himself to supply profits, and the court held that in the absence of proof that there were profits applicable to the payment plaintiff could not recover.

So in Wharton on Contracts (vol. 1, § 598), it is stated that a promise to pay out of a particular fund cannot be enforced if it appears that the fund did not come to the promisor’s hands and its non-reception is not attributable to the promisor’s neglect. In O'Brien v. Home Benefit Society, 46 Hun, 426, the promise was to pay to the beneficiary “ all the amount realized from one assessment, not exceeding two thousand dollars,” and the court held that to establish a cause of action it was incumbent upon the beneficiary to show that an assessment had been levied and realized moneys applicable to the payment of his claim, or, that if such assessment had been levied -it would have realized moneys so applicable. Such was substantially the same contract in Martin v. Equitable Accident Association, 55 Hun, 574; 29 N. Y. State Rep., 421.

It will be. seen from an examination of the bond upon which the present claim is founded, that its provisions differ essentially from the contracts sued upon in the cases cited. Here the defendant was bound to create and maintain a death fund and. from time to time to replete it by a contribution of eighty per centum of the amount realized from assessments levied upon the persistent members, and its obligation was to pay $5,000, absolutely and unconditionally, out of the death fund at the time of the insured’s death to his beneficiary, within sixty days after receipt of satisfactory evidence of the death of the insured. The promise way not to pay out of assessments to be levied and collected from persistent members for the express purpose of meeting the claim of the particular beneficiary, But out of a fund which it had contracted to create and maintain for the purpose of such payment. In such a case, failure of proof of the existence of a death fund applicable to the claim of the beneficiary can furnish no excuse for its non-payment, unless it be conceded that the defendant may do what in Freeman v. The National Benefit Society, 42 Hun, 252; 5 N. Y. State Rep., 82, approved by this court in Fitzgerald v. Equitable R. F. L. Association, 24 N. Y. State Rep., 493, the court say it should not be permitted to do, “ lie by and omit to put into operation the means possessed by it to obtain the fund, and omit payment because of its own neglect of duty. This would .be to take advantage of its own wrong, and it would operate as a fraud on the beneficiary under the certificate." La Manna v. National Security Life & Accident Co., 10 N. Y. Supp., 221; 32 N. Y. State Rep., 347, is directly in point and the beneficiary was held to be prima facie entitled to recover the amount stated in the policy. See also Harl v. Pottawatomie Co. Mutual Fire Ins. Co., American & English Corporation Cases, vol. 22, p. 629; Risley v. Smith, 64 N. Y., 582.

W e are, therefore, of the opinion that the liability under the obligation in the present case is radically different from that in O'Brien v. Home Benefit Society, above cited, and similar cases, and that it was incumbent upon the defendant to show that the •death fund was depleted, with a sufficient excuse for its maintenance in that condition, and that in the absence of such proof the defendant was liable for the face value of its bond. It was said in O' Brien v. Home Benefit Society, above cited, that in the absence of proof of the levy of an assessment for the purpose of meeting the claim presented, “ and in view of the failure of the defendant to make the assessment, and of the defendant’s ability to show what would have been realized from such assessment, and plaintiff’s inability to do so, it might be presumed that the assessment would have realized the full amount ” of the obligation.

In the present case, however, there is some evidence to support the claim that defendant, at the time of the death of Cushman, its member, did have sufficient funds applicable to the claim which had accrued to the beneficiary under the bond issued to him. The facts of the payment to Engelman, when he asserted his claim, and of the payment of one-third of the remainder to Annie Cushman, the widow of the insured, we think are sufficient to support an inference that the amount requisite to meet the obligation of the defendant under its bond had been properly appropriated, and that the other two-thirds remaining after payment to Engelman were, at the time of Cushman’s death and the presentation of the claims under the bond to him, in the possession of the defendant. So, also, while there may not be ample evidence that at the time of the assignments to Engelman the latter distinctly and explicitly received the instruments as collateral security only, still the fact that the attorney and agents employed by him in the collection of his demand at the time of the payment thereof asserted only the qualified interest of a creditor of the obligee in the money due on the bond, sufficiently shows that the assignments were not intended to vest the absolute ownership of the bond and the money due and to grow due thereunder in Engelman. These assertions amount to declarations against the pecuniary interest of Engelman, made by him or those representing him, and are therefore admissible to prove his interest. Livingston v. Arnoux, 56 N. Y., 507; Chenango Bridge Co. v. Paige, 83 id., 178, 192; Low v. Hart, 90 id., 457.

The only remaining ground urged on the motion for a nonsuit and on this appeal for reversal of the judgment is that the city court did not have jurisdiction of this action as it involved the determination that the assignment of the policy to Engelman which was absolute on its face was intended merely as security, a determination which it is urged could only be had in .a court possessing equity jurisdiction. The answer to the objection is, that the plaintiff did not invoke the exercise of equity powers or jurisdiction. She. sued at law for a money judgment for the sum remaining in the hands of defendant after satisfying Engelman’s demand under his assignment. It is competent to show in an action at law that a conveyance absolute on its face was made as security. Resort to equity is not necessary unless equitable relief is demanded. If the defendant had not paid Engelman and the latter claimed as against his assignor the whole proceeds of the policy under form of his assignment, an action in equity might be proper to declare his rights thereunder. But if Engelman had collected the whole proceeds of the policy and was sued for money had and received over and above his debt, it could be shown in such an action that the assignment was security for a debt, and that his debt had been satisfied. So it may be shown now in an action against the company for the balance of the policy unpaid after satisfying Engelman; for “ a deed or conveyance absolute on its face if really only intended to secure a debt is deemed in equity and at law a mortgage.” Murray v. Walker, 31 N. Y., 399; Barry v. H. B. Ins. Co., 110 id., 4, 5; 16 N. Y. State Rep., 634.

Judgment should be affirmed, with costs.

Daly, Gh. J., and Pryor, J., concur.


text:
    The Davidson Steam Pump Co., Resp’t, v. The Peerless Manufacturing Co., App’lt.

      (New York Common Pleas, General Term,

      Filed February 2, 1891.)

    1. Appeal—Powers oe court oe common pleas.
    The court- of common pleas of the city of New York has no jurisdiction, upon an appeal from a judgment of affirmance by the general term of the city court, to consider objections put upon the grounds that the verdict was against evidence, or the damages excessive.
    2. Evidence—Prooe oe damaoes.
    When all the proof upon the question of damages has been given which, in the nature of the case, is possible, the good sense of the jury must provide the answer; audit is no defense that such judgment involves more or less of estimate or opinion, having very little to guide it.
    Appeal from judgment of general term of the city court, affirming judgment on a verdict. Action for breach of warranty on sale of goods.

      Artemus B. Smith, for app’lt; George W. Miller, for resp’t.
   Per Curiam.

Counsel for appellant urges a reversal of the judgment on grounds, the was against of evidence, and the damages excessive; but he should know that on appeal from a judgment of affirmance by the general term of the city court, this court has no jurisdiction to entertain the question he proposes for our consideration. Schwarz v. Oppold, 74 N. Y., 307, 310; Walsh v. Schulz, 67 How., 186; Rowe v. Comley, 2 Civ. Pro., 424; Bell v. Bartholomew, 12 Wk. Dig., 33 We have authority to review only errors of law arising upon the trial, and presented here by proper exception.

The case was submitted to the jury by a charge, not only unexceptional, but actually not exSepted to; and counsel’s withdrawal was not only of exceptions to the charge but to refusals to charge, for otherwise the withdrawal was meaningless, as no exception had been taken to the charge itself.

Appellant’s chief complaint is, that the damages were not proved with sufficient explicitness ; but, “ it is often the case that damages cannot be estimated with precision, and the basis of accurate calculation is wanting. When all the proof which, in the nature of the case is fairly possible has been given, the good sense of the jury must provide the answer, and it is nc defense that such judgment involves more or less of estimate or opinion having very little to guide it.” Drucker v. R. R. Co., 106 N. Y., 157, 164; 8 N. Y. State Rep., 599. The verdict is for one-fourth only of the sum claimed, and which on the evidence might have been awarded.

On a'critical examination of the exceptions we are satisfied that none is tenable; and the judgment and order must be affirmed, with costs.

Ablest, Bischoff and Pryor, JJ., concur.


text:
    Richard Flatow, Pl’ff, v. Theodore Von Bremsen, Def’t.

      (New York Common Pleas, General Term,

      Filed February 2, 1891.)

    1. Judgment—Entry of final, after failure to comply with terms of INTERLOCUTORY JUDGMENT OF GENERAL TERM OF CITY COURT.
    A judgment for defendant, on demurrer, was reversed by the general term of the city court and an interlocutory judgment was ordered entered, dismissing the complaint unless plaintiff complied "with certain terms. He did not do this; and upon proof of his failure the defendant procured from a special term of the city court an order for final judgment dismissing the complaint and entered said judgment. Held, error. The judgment which should have been entered was the final judgment of the general term of the city court.
    3. Appeal—When it cannot be taken to the common pleas.
    Ho appeal can be taken, under Code Civil Procedure, § 3191, to the common pleas, from an order entered at a special term of the city court.
    Appeal from a judgment reversing an interlocutory judgment overruling a demurrer to the complaint herein.

      John P. Schuchman, for app’lt; George W. Stevens, for resp’t.
   Per Curiam.

The action was commenced in the court of Flew York to recover damages for alleged slander. The defendant demurred to the complaint. The demurrer was overruled at the special term, and an interlocutory judgment entered accordingly. From this judgment an appeal was taken by the defendant to the general term of the city court, where it was reversed and an interlocutory judgment ordered, that the complaint be dismissed, with costs to¡ defendant, unless within six days from the service of a copy of the interlocutory judgment plaintiff should pay to the defendant the costs of the demurrer and of the appeal, and amend his complaint.

On this decision of the general term, an interlocutory judgment in proper form was entered. The order of the general term also provided that in case the plaintiff should not amend his complaint aud pay the costs as provided,'final judgment should be entered ^against him dismissing the complaint.

Thereafter, on proof of plaintiff’s failure to avail himself of the leave granted by the interlocutory judgment, the defendant applied to the special term of the city court for an order for judgment, which was granted, and final judgment was then entered in pursuance of said order of the special term of the said court This was an improper judgment. The final judgment which the plaintiff was entitled to, and which he should have entered, was the final judgment of the general term. The judgment appealed from thus entered upon the order of the special term is not appeable directly to this court.

It is hardly necessary'to say that no appeal from the order of the general term to this court, under § 3191 of "the Code of Civil Procedure, is authorized. It was plainly the duty of the appellant when he sought to appéal to this court, after he found that an incorrect final judgment had been entered in pursuance of the decision of the general term, to apply to the court and have a correct final judgment entered, from which he could appeal. His right of appeal, however, is not cut off by his failure to do so. He can apply to have a correct judgment entered, and when that has been done he can appeal from it to this court.

His present appeal, however, must be dismissed, with ten dollars costs.

Allen, Bischoff and Pryor, JJ., concur.


author: Pee Curiam.

text:
    David Ramsay, Resp’t, v. David Wilkie, App’lt.

      (New York Common Pleas, General Term,

      Filed February 2, 1891.)

    1. Lease—Sutcrendee—Agent must be specially authobized to.
    A surrender by the agent of the tenant of a lease for a teim of years is not valid unless the agent is specially authorized in writing to make such surrender, as well as to create, convey or assign such lease.
    2. Same—Eviction.
    By means of excavations made by an adjoining owner upon his land-for the purpose of building, the alleyway caved in so that defendant was unable to use it. It appeared that this could have been prevented by sheathing the alley. JBeld. that as the lease required the tenant to make all repairs, and there was no covenant by the landlord to protect him from such injuries, it was the duty of the tenant to shore up the alleyway, and he could not claim an eviction.
    Appeal from final order of the eighth district court, in proceedings to dispossess Wilkie, the tenant, from certain premises by reason of the tenant’s non-payment of rent.
    The following is the opinion below :
    This proceeding was .brought by the landlord to dispossess the tenant for the alleged non-payment of rent for the month of Marcth 1890, which the landlord alleges to be due, under and by virtue of a lease dated August 31, 1885, for the term of five years and eight months from the 1st day of September, 1885, at the yearly rental of $1,000, rent payable when due or at the end of the month. The tenant interposes two defenses: First, surrender and acceptance; and, secondly, eviction. These defenses are inconsistent. If the premises were surrendered by the tenant, and accepted by the landlord, then, and in that case, the tenant was out of possession, and the landlord in possession. Eviction cannot occur after the tenant is out of possession. A tenant, to be evicted from the beneficial enjoyment of the premises, must necessarily be in possession at the time of the alleged eviction. I shall therefore deal first with the question of the surrender and acceptance under the statute. The statute provides that “ no estate or interest in lands, other than leases for a term not exceeding one year, * * *
    shall hereafter be created, assigned, surrendered, or declared, unless by act or operation of law, or by deed or evidence in writing subscribed by the party creating, * * * surrendering, or declaring the same, or by his lawful agent thereunto authorized by writing.”
    The lease between landlord and tenant is in writing and under seal, and the power of attorney given by the tenant to his agent is also under seal, but contains no provision by which the attorney in fact is authorized to surrender, cancel or annul a lease. If I read and interpret the statutes correctly, the lawful agent must be specially authorized in writing to surrender a lease, as well as to create, convey, or assign such lease. The power of attorney gives the agent no authority to sell or in any way to dispose of real property or leasehold. Surrendering a lease is disposing of property. Therefore it follows, as matter of law, the agent having no authority under his power of attorney to make a surrender under the statute, that there has been no surrender by deed or by operation of law. Surrender by operation of law has. been defined to be the restoring and yielding up an estate and interest in land to one who has an immediate estate in reversion and remainder, and, by the statute of frauds, a term exceeding one year cannot be surrendered unless by act or operation of •law, or by deed of conveyance in writing. Coe v. Hobby, 72 K Y, 145; Winant v. Hines, 14 Daly, 188-191; 6 N. Y. State Rep., 261.
    In the case of Coe v. Hobby, the court of appeals say: “ The farthest that our courts have gone is to hold that, to effect a surrender of an existing lease by operation of law, there must be a new lease, valid in law to pass an interest, according to the contract and intention of the parties. Page 147. Within the above rule, there-was no surrender of the lease upon which this proceeding is predicated ; no written surrender of the same under the statute. I find, therefore, there was no valid or legal surrender of the premises.
    It appears by the lease that the term had more than one year to run. Therefore the surrender must necessarily be in writing, subscribed by a person authorized to make the surrender. Upon the trial of this proceeding, the landlord did not ask to have the tenant elect as to which of his defenses he would proceed under, and, evidence having been given on the subject of eviction, the court, being in possession of all the facts, is in a po-' sition to pass upon that question. It appears by the lease that the rent is payable when due, or, in other words, at the end of the month. The evidence in this case discloses that on or about the 10th of March, 1890, the owner of the adjoining lot, on the east of the property in question, commenced excavating for the purpose of building a new structure thereon, but did not go below ten feet in so excavating. Under the existing statutes and authorities of this state, where the party excavating does not intend to go below ten feet, the obligation is upon the adjoining owner to protect his own property against injury or damage arising from the excavation. It appears from the evidence in this case that there was an alley-way on the premises in question, leading to stables in the rear of the premises, and, in consequence of the excavation on the adjoining lot, the same fell in upon the said adjoining lot, so that the tenant and his subtenants were unable to use the alley-way. The question now arises as to whose duty it was to protect the alley-way from caving in. If it was the landlord’s duty, the evidence shows that he failed to do it. If it was the tenant’s duty, the evidence shows that he did nothing to protect the alley-way from caving in. It is in evidence that, if the alley-way had been sheathed, piled,' it would have remained intact, and the tenant consequently would have had the beneficial use and enjoyment of it! The lease provides as follows: “All improvements and necessary repairs to be done at the expense of the party of the second part.” The evidence does not show that the tenant was deprived of his possession by any act of the landlord, or by any - one having a paramount title to the premises demised, and, unless something of this kind is shown, there is no ground whatever for an action for the breach of the covenant for quiet enjoyment Connor v. Bernhdmer, 6 Daly, 300. The caving in of the alley-way was caused by the lawful acts of a stranger, which does not attach to the landlord any liability in this case.
    In the case of Howard v. Doolittle, 3 Duer, 464, there is a great similarity to the one under investigation. The tenants in that ■case, by the terms of their lease, obligated themselves to make all the repairs as in this case. An excavation took place on the adjoining premises, and the tenants were disturbed in the beneficial use and enjoyment of their premises. The question arose in that case as to whose duty it was to shore up and protect the walls of the demised premises from falling, whether the tenants or landlord. Judge Duer, in a very able and full opinion, held it was the duty of the tenants under and by virtue of their covenant in their lease to repair. The case of Qallup v. Alb. R'y Co., 65 H. Y., 1, was where the grade of the street was changed, and the access to the demised premises rendered inconvenient to the.tenant. In an action for rent, the defendant set up in his answer a counterclaim for damages by reason of the alleged interference of the plaintiff or landlord with the tenant’s possession. Judge Reynolds, in writing the decision, says: “ There being no covenant by the plaintiff to protect the defendant from injury occasioned by the act of the city, I do not see how it can claim any abatement from the rent agreed to be paid by the terms of the lease. It seems to be very cleay that there was no eviction, or anything bearing much resemblance to it,” etc. In this case, there was no covenant on the part of the landlord to protect the defendant from injury occasioned by excavation. What was done by the adjoining owner was lawful, and the adjoining owner would only be liable to the tenant in case of negligence on his part. In other words, the landlord in this proceeding could not be charged with the act of the adjoining owner in excavating, whether it was done carelessly, negligently, or not, but the tenant would have to seek bis remedy against the owner or person excavating on the adjoining lot, in case of any wrongful or negligent action on his or their part. It is true that the lease contains a covenant for quiet enjoyment of the premises demised on the part of the landlord, but it is well settled that such covenant only goes to the extent of engaging that the landlord has a good title, and can give a free and unincumbered lease of the premises for the term demised. Meélcs v. Bowerman, 1 Daly, 100; Johnson v. Oppenheim, 55 H. Y., 280; Howard v. Doolittle, 3 Duer, 464; Sherwood v. Seaman,1 Bosw., 127; Adders v. Heldenger, 1 City Ct., 81. It is also a well settled rule that a covenant to repair extends to all repairs, irrespective of the cause of defect Where there is an express covenant to keep in repair, there can be no independent, collateral, oral undertaking on the part of the landlord by which he, and not the tenant, is to perform this covenant. Heinize v. Hrladier, 1 City Ct., 465; LocJcroivv. Horgan, 58 N. Y., 635; McMann v. Autenreith, 17 Hun, 163. If the court is correct, that the tenant was bound to do the shoring up, then it follows, as matter of law, that the landlord is entitled to a final order in his favor.

      Wager & Adcer, for resp’t; J. L. Wilhie, for app’lfc
   Pee Curiam.

This case was decided in the court below. The tenant interposed two defenses: (L) Surrender and acceptance, and (2) eviction. He failed to establish upon the trial any valid surrender or an eviction, and the landlord was entitled to the final order, which was awarded to him by the court.

The final order must be affirmed, with costs.

Allen, Bischoff and Pryor, JJ., concur.


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    Emma E. Brennan, Resp’t, v. Frederick Schellheimer, App’lt.

      (New York Common Pleas, General Term,

      Filed March 2, 1891.)

    Vendor and purchaser—Eppect oe acceptance op deed upon covenants in contract.
    Under a contract for the sale and purchase of land containing covenants by the vendor to be subsequently performed, or as to the condition of the premises, the acceptance of a deed by the vendee, with no words or acts of reservation, will be deemed a full satisfaction of all covenants of which the conveyance is necessarily performance. When, however, there are stipulations in the contract of which the conveyance itself is not a performance, the acceptance of a deed, even though the vendee have actual knowledge of the defects covenanted against, raises no presumption that the covenants have keen waived, and, in default of any proof to show an intention to make such waiver, the grantee may sue the grantor for damages for breach of such covenants.
    Action for damages for breach of covenant concerning condition of building in an agreement to convey real property. Appeal from judgment of the ninth district court in favor of plaintiff.

      Henry F. Idppold, for app’lt; Joseph Fettreich, for resp’t.
   Bischoff, J.

On September 28, 1889, by an agreement under their hands and seals, the plaintiff agreed to purchase, and the defendant agreed to sell and convey, the premises known as 117 East Ninety-first street in the city of New York. As part of his agreement, the defendant covenanted that the building was completed in compliance with the laws of this city and state and the rules and regulations of the board of health and fire department of the city of New York. Some time before the final performance of the agreement the plaintiff ascertained that the drainage and plumbing work in the premises were defective and in violation of the laws, rules and regulations referred to, but, notwithstanding, she accepted a conveyance of the premises without expressly reserving her right to proceed against defendant upon his covenant.

Thereafter plaintiff caused the cesspool and plumbing work to be put in proper condition and for the recovery of the expense incurred brought this action, in which judgment was rendered in her favor. Assuming that notwithstanding her acceptance of the deed the plaintiff could recover upon the covenant in the preliminary agreement, we do not feel authorized to direct a reversal inasmuch as the return of the court below discloses no error, and the evidence introduced for plaintiff is sufficient to sustain the trial justice’s disposition of the matter. On the trial, however, as well as upon fhe hearing of this appeal, the learned counsel for defendant cqntended that the action was not maintainable and should have been dismissed, the ground for his contention being that the preliminary agreement of sale became merged or extinguished upon the acceptance of the deed. As a proposition of law this is not entirely correct, the question of merger or extinguishment of the preliminary and executory agreement by acceptance of the deed being purely one of intention, and if it be apparent that the parties did not so intend the agreement will not be deemed merged or satisfied by the subsequently delivered tand accepted deed. If there be no evidence whatever of an express reservation or waiver of the provisions of the agreement, the intention to accept the deed in satisfaction and extinguishment thereof becomes a matter of interpretation of the acts of the parties and all former provisions of which the conveyance is the performance must be considered at an end. For as to such provisions the parties must be deemed to have so intended. But not so-concerning provisions of which a conveyance is not necessarily performance. These will be regarded as still subsisting. The rule is stated as follows: In all cases, then, where there are stipulations in a preliminary contract for the sale of land of which the conveyance itself is not a performance, the true question must be whether the parties have intentionally surrendered those stipulations. The evidence of that intention may exist in or out of the deed. If plainly expressed in the very terms of the deed, the evidence will be decisive. If not so expressed the question is open to other evidence, and I think in absence of all proof there is no presumption that either party, in giving or accepting a conveyance, intends to give up the benefit of covenants of which the conveyance is not a performance or satisfaction.” Morris v. Whitcher, 20 N. Y., 41. See also Willard on Real Estate and Conveyancing, (2nd ed.,) pages 305 and 306, and cases cited; Atwood v. Norton, 27 Barb., 638.

This rule has been approved of by the court of appeals in the very recent case of Disbrow v. Harris, 122 N. Y., 362; 33 N. Y. State Rep., 558, which in its essential particulars closely resembles the case at bar. In the case cited it appeared that the plaintiff had covenanted that the buildings to be conveyed were in good condition. At the time of the delivery and acceptance of the deed the defendant complained that the contrary was the fact, and a part of the purchase money was permitted to remain in his hands as security for plaintiff’s promise to make certain improvements. When these improvements were completed the defendant sought to retain the sum remaining in his hands because of other alleged defects in the building. It was held that the fact that the defendant had secured himself for the defects specified at the time of accepting the deed would sustain an inference that he intended to waive objection to others, but the court say, that in the absence of anything indicating a contrary intention the right to seek redress for plaintiff’s breach of covenant respecting the condition of the building would have survived the conveyance. See, also, Bennett v. Abrams, 41 Barb, 619.

We have examined Whittemore v. Farrington, 76 N. Y., 452; Harsha v. Reid, 45 id., 415, and Canaday v. Stiger, 55 id., 454, cited by counsel for appellant, but these cases could not be urged as sustaining his position. In neither of these cases was it attempted to recover upon a covenant in a preliminary and executorv contract of sale, and the question now presented to us for consideration did not there appear and was not attempted to be discussed, and the same may be said of most of the numerous cases upon the appellant’s brief.

The. judgment appealed from should be affirmed, but without costs, as per stipulation annexed to the return.

Allen and Pbyob, JJ., concur.