text:
    E. Stanton Riker, Respt. v. Timothy Mahoney et al., App’lts.

      (New York Superior Court, General Term,

      Filed March 6, 1893.)

    Services — Procurement of building contract.
    In an action for services in procuring a building contract for defendants, the evidence established the facts that plaintiff introduced the owner of land to defendant, W., after he had informed him of the contemplated building by said owner, and that finally the contract was awarded to defendants ; but as to any agreement to pay plaintiff for such introduction or the nature and value of his services there was a conflict of evidence. Held, that a verdict for plaintiff would not be disturbed.
    Appeal from a judgment, entered on the verdict of a jury, and from an order denying defendants’ motion for a new trial.

      Thornall, Squires & Constant (Franklin Pierce, of counsel), for pl’ffs; Andrew A. Henderson, for def’ts.
   Gildersleeve, J.

The complaint herein sets forth a cause of action for the value of services rendered by the plaintiff to the defendants, in obtaining for the defendants, who are copartners in business, a contract to erect a large apartment house in West Fifty-eighth street, New York city, from one R. La Forte. The plaintiff claims that the defendants employed him to obtain said contract, and agreed to pay him the value of his' services, and that the value of those services is $2,125. The defendants deny the agreement for employment, and deny that the services were worth the sum stated.

The evidence establishes the facts that La Forte was first introduced to the defendant Watson, who acted for his firm in the transactions in question, by the plaintiff, after the plaintiff had informed defendant Watson of the contemplated building by La Forte; and that, finally, the contract for building was awarded, by La Forte to the defendants. But as to any agreement to pay plaintiff for such introduction, and as to the nature and value of his services, there is a sharp conflict of evidence. The questions, of fact arising from the conflicting testimony were properly submitted by the learned trial judge to the jury, who, by their verdict, found in favor of plaintiff’s contention as to the services, and agreement to pay therefor, and fixed the value of such services at $1,000. With this conclusion the general term will not interfere, as there is sufficient evidence to justify the verdict. and sustain the judgment.

The charge, when taken as a whole, is correct, and there are no exceptions to the admission or exclusion of evidence of sufficient-importance to warrant a reversal.

The judgment and order appealed from are affirmed, with costs

Sedgwick, Oh. J., concurs.


source: Caselaw Access Project

author: Daly, Ch. J.

license: Public Domain

text:
    Henry A. Capel et al., Resp’ts, v. Jeremiah C. Lyons et al., App’lts.

      (New York Common Pleas, General Term,

      Filed March 6, 1893.)

    1. Trespass — License—Entry to shore up building.
    One who enters premises for the purpose of shoring them up, under a qualified license from the tenant in occupation of them, becomes a trespasser if he transcends the terms of said license.
    2. Same — Damages.
    For such trespass the injured party may recover as part of his damages, the certain profits on actual contracts which the trespass prevents his filling.
    3. Appeal — Bill oe particulars.
    An order of the general term of the city court, granting or refusing a bill of particulars, is not appealable to the common pleas.
    Appeal by defendants from a judgment of the general term of the city court, affirming a judgment of the trial term in favor of plaintiffs entered upon the verdict of the jury. Also appeal from an affirmance of an order denying defendants’ motion for a further bill of particulars.

      Charles Edward Souther, for app’lts; B. Lewinson, for resp’ts.

       Affirming 46 St. Rep., 298.

   Daly, Ch. J.

The order of the city court denying the defendants’ motion for a further bill of particulars is not reviewable in this court. The circumstances disclosed by the papers called for the exercise of the discretion of the court, for the defendant was plainly guilty of laches in moving and the trial would have been unduly delayed if his motion had been granted. With the exercise of discretion by the city court in granting or refusing a bill .of particulars we cannot interfere. Witkowski v. Paramore, 93 N. Y., 467; Kelsey v. Sargent, 100 id., 602.

On appeal from the judgment the exceptions bring up for review the questions whether the plaintiffs, being tenants of premises adjoining the property upon -which the defendants were about to excavate for building and having afforded the latter a license to enter the premises to a limited extent only, for the purpose of shoring up the wall, can maintain an action for trespass if the restriction in the license be exceeded and can recover damages based upon evidence of loss of profits on work which they were prevented from doing upon the premises by defendants’ acts.

The verdict of the jury establishes that the defendants were'to run their beams into plaintiffs’ basement no further than a foot from the wall, and were to build a partition and replace the steam pipes; that nevertheless they put in eighteen or twenty beams which ran nearly all the way across to the opposite wall and deprived plaintiffs of the whole use of the basement. The contention of defendants is that the plaintiffs have an action for breach -of contract and not for trespass, and that loss of profits is not recoverable. If the claim were simply for failure to erect a partition and replace the steam pipes, the point would be well taken; but the proof showed damage accruing from acts in excess of the license, and a trespass by defendants upon the premises beyond the one foot to which the license restricted them. An entry upon .any part of plaintiffs’ premises without a license, even for the purpose of supporting their wall, would be a trespass, Ketcham v. Cohn, 51 St. Rep., 213; Dorrity v. Rapp, 72 N. Y., 311, and upon the same principle entry and occupation beyond the limit fixed by the license would equally be a trespass, for the licensee must bring himself within the terms of the permission to justify under it. Wheelock v. Noonan, 108 N. Y., 179; 13 St. Rep., 110.

Defendants being trespassers, plaintiffs were not limited to such damages as are recoverable for breach of contract, nor for breach ■of covenant of quiet enjoyment. There is no analogy between such actions and this case. In trespass, proof of loss of profits is receivable to enable the jury to arrive at the extent of the loss which the defendant’s wrongful act had occasioned. Denison v. Ford, 10 Daly, 414; Schile v. Brokhahus, 80 N. Y., 620. It was •competent, therefore, for plaintiffs to show that they had orders to manufacture feathers for specified customers; that the price was certain and so were the profits; that they were prevented by -the trespass from doing the work, and that the goods could not be obtained elsewhere. The exceptions to the admission of this testimony are unavailing. Objection was made to proof of loss of the proportion of .the annual rent paid by plaintiffs for the use of steam heat during the period that their pipes were taken down. It is urged that no such item of damage is embraced in the plaintiffs’ bill of particulars, but this objection was not taken on the trial, either when the evidence was offered, or when the item was submitted in the charge of the court

Exception was taken to the instruction to the jury that they should find for the plaintiffs the sum which they determined would have been profits, and it is now urged that the court should have charged that profits as profits.were not recoverable and were only submitted to enable the jury to arrive at the extent of the plaintiff’s loss. The defendant did not point out the error complained of, but on the contrary coupled his exception with a request for an instruction that such damages were too remote, thus confining his objection to the charge to one ground and that plainly untenable. No error appears in the record, and the judgment and order appealed from should be affirmed, with costs.

Bischoff and Pryor, JJ., concur.


author: Pryor, J;

text:
    John Hoffman, Resp’t, v. James Van Allen, App’lt.

      (New York Common Pleas, General Term,

      Filed March 6, 1893.)

    1. Summary proceedings — Variance.
    A petition setting forth a verbal letting on or about November, for one month, is not sustained by proof of an oral lease in April, from month to month, so long as he would pay the rent.
    3. Same — Notice.
    A lease from month to month, so long as the rent is paid, is indefinite as to duration, and entitles the tenant to hold so long as he pays the rent, or until he receives a month’s notice to quit.
    Appeal from final order in a summary proceeding to dispossess a tenant for holding over. A month’s notice to quit was not given.

      Julius Heiderman, for app’lt; John McMahon, for resp’t.
   Pryor, J;

In the order before us we have an instance of the “ injustice and oppression ” which Judge Bronson apprehended from summary proceedings unless they be “carefully watched.” Hill v. Stocking, 6 Hill, 314, 318.

The petition alleges a verbal letting on or about the 1st November, 1892, “ for the term of one month.” The proof was of an oral lease, in April, “ from month to month, as long as he would pay the rent.” The evidence failed to sustain the petition. Romeyn v. Sickles, 108 N. Y., 650, 652; 13 St. Rep., 864.

Waiving the discrepancy betweemthe pleading and proof, still it appeals the petitioner miscarried iri making a case for an order of dispossession.

As to the notice requisite in summary proceedings, the distinction is between tenancies for a month and tenancies from month to month; in the former no notice being necessary, while in the latter the formal notice is indispensable. Wilson v. Taylor, 8 Daly, 256; Geiger v. Braun, 6 id., 506; Anderson v. Prindle, 23 Wend., 616.

Assuming, as held in some cases, Ludington v. Garlock, 29 St. Rep., 600, and citations, that notice be not requisite in' simple tenancies from month to month, here was something more. namely, a letting from month to month “ so long as the rent was paid.” These qualifying words, in effect, make the term indefinite and entitle the tenant to hold so long as he pays the rent, or until he receives a month's notice to quit.

The order reversed, with costs, and restitution directed.

Bischoff, J., concurs.


author: Bischoff, J.

text:
    Rachel Ranger, Resp’t, v. John G. Bacon et al., App’lts.

      (New York Common Pleas, General Term,

      Filed March 6, 1893.)

    Lease — Assignment—Effect of.
    The assignment of a lease with the lessor’s consent, and the assumption-by the assignee of the lessees’ covenants, are not inconsistent with the continued vitality of the lease if the assignee’s covenant be regarded as additional security only, and hence no intention to accept a surrender will be inferred.
    2. Same.
    Nor does the substitution of one tenant in the place of another operate, as matter of law, to discharge the latter from future performance of his express covenants.
    Appeal from a judgment of the district court in the city of New York for the ninth judicial district. Action upon defendants’ express covenant to pay rent; the defenses being that the lessees were discharged by surrender and acceptance of the lease, and the substitution of their assignee, with the consent of the lessor, as lessee in their place and stead.

      Wayland E. Benjamin, for resp’t; David Welch, for app’lts.
   Bischoff, J.

The action was by the lessor against the lessees under a sealed lease to recover upon the latter’s express covenant to pay rent. The facts are unchallenged, and the controversy relates only to the legal conclusion which is properly deducible therefrom. It appeared that the lessees assigned the lease to one F. C. Cannon with the written consent of the lessor thereunto-required by the terms of the lease. Cannon covenanted to assume the rent and to perform all the covenants and conditions which the lessees had undertaken to perform. Thereafter,, with knowledge of the fact of the assignment, the lessor accepted the next succeeding month’s rent from the assignee.

On the trial defendants contended that they were discharged from liability for rent after the assignment of the lease and acceptance by the lessor of rent from the assignee. The justice below held otherwise, and from & judgment for plaintiff. defendants appeal.

The judgment is unassailable. It does not plainly appear that the.defense of surrender and acceptance of the lease was pleaded. Assuming, however, that it was, the facts do not, as matter of law, establish it. The assignment of the lease and the assumption by the assignee of the lessees’ covenants are not inconsistent with the continued vitality of the lease if the assignee’s covenant be regarded as additional security only. Hence, no intention to accept a surrender of the lease will be inferred. Smith v. Kerr, 108 N. Y., 31; 13 St. Rep., 115.

Nor does the substitution of one- tenant in the place of another operate, as matter of law, to discharge the latter from future performance of his express covenants. Port v. Jackson, 17 Johns., 239, 479; Phelps v. Van Dusen, 3 Abb. Ct. App. Dec., 604; Lodge v. White, 27 Am., 492; Washington Natural Gas Co. v. Johnson, 10 Am. St., 553, and cases collated in the note, pp. 559, 562. It is apparent from his citation of cases that defendants’ counsel does not distinguish between express covenants and implied covenants ; the latter arise from the privity of estate, and are extinguished when the privity ceases; the former, however, continue until discharged by performance, or agreement founded upon sufficient consideration, unless the estate demised is determined by the landlord’s re-entry.

The judgment should be affirmed, with costs.

Pryor, J., concurs.


author: Pryor, J.

text:
    Hattie Goldberg, Resp’t, v. Louis J. Lavinski, App’lt.

      (New York Common Pleas, General Term,

      Filed March 6, 1893.)

    1. Lease — Statute op frauds.
    An oral lease for a year to commence in futuro is valid.

      2. Same — Evidence.
    Evidence that defendant a month after the alleged date of a lease, contracted for the purchase of other premises is immaterial and inadmissible on the question whether such lease was made.
    Appeal from judgment of a district court, on trial by the justice.

      Abraham Nelson, for appl’t; Isidor Hershfield, for resp’t.
   Pryor, J.

Action for two months rent under an alleged lease for a year.

The defendant denies a letting for a year; but the court found the fact against him; and as the evidence was conflicting and quite evenly balanced, we are not authorized to reverse the judgment for deficiency of proof.

The defendant essayed to dispute the title under which he took possession; but from this escape he was precluded by a familiar principle.

Again, the defendant urges the invalidity of an oral lease for a year to commence in the future; but he failed to plead the statute of frauds, and if he had, the defense would have been unavailing. Young v. Lake, 5 N. Y., 463; Taggard v. Roosevelt, 2 E. D. Smith, 100.

Yet again, appellant interposes a surrender of his term; but no such defense appears to have been hinted on the trial by plea or proof; nor do the facts in evidence support it.

To disprove the agreement for a lease in February, 1892, defendant offered to show that in March, 1892, he contracted for the purchase of other property ; but of what force is the latter fact in negation of the former ? And, upon what principle may a party adduce his own act as evidence against his .adversary? It was not of the res gestee, nor was the plaintiff privy to it. Tender of the proof was properly rejected.

We see no ground upon which the judgment may be disturbed.

Judgment affirmed, with costs.

Bischoff, J., concurs.


text:
    Adolph Gluckman et al., App’lts v. Herman Kleiman, Impl’d, Resp’t.

      (New York Common Pleas, General Term,

      Filed March 6, 1893.)

    1. Lien — Woke bestowed upon chattel.
    To enable an artisan to acquire a lien for work done upon goods, it. must appear that the person from whom he obtained possession of the goods was authorized to dispose of them for that purpose, either as owner or with the owner’s consent, express or implied. A mere bailee for hire has no such authority.
    2. Same.
    Plaintiffs employed one G. to finish certain coats, and G., without their knowledge, employed defendant to make the button holes on a greater number, including these. A part were returned, and defendant claimed a lien on the balance. Held, that there being no proof from which plaintiffs’ consent to his right as lienor can be inferred, he could not acquire a lien thereon.
    Appeal from a judgment of the district court in the city of New York for the second judicial district. Action to recover possession of personal property.

      Charles I. Schampain, for app’lt; Sigmund Feuchtwanger, for resp’t.
   Bischoff, J.

Gluckman & Gross, plaintiffs, employed Jacob Gewirtz to finish thirty-seven coats, which were delivered to him for that purpose. Gewirtz, without the knowledge of Gluckman & Gross, employed Herman Kleiman, defendant, to make the button holes of a greater number of coats, including those of Gluckman & Gross, which were delivered to him in one lot. All the coats delivered to Kleiman, except those of Gluckman & Gross, were finished and returned to Gewirtz, and upon the remaining coats Kleiman claimed a lien for the work done upon those returned. Upon demand by Gluckman & Gross for return of their coats Kleiman asserted his supposed lien, and in an action to recover possession he had judgment sustaining the claim of a lien.

It is indisputable that an artisan who by his skill and labor enhances the value of the goods of another has a lien for his agreed or reasonable charges which extends to all the goods delivered to him under one contract, Morgan v. Congdon, 4 N. Y., 552; Schmidt v. Blood. 9 Wend., 268; Moore v. Hitchcock, 4 id., 292, and that the return of part of the goods does not impair the lien for the labor bestowed thereon as against the goods remaining. Wiles Laundering Co. v. Hahlo, 105 N. Y., 234; 7 St. Rep., 1; 3 Parsons on Contracts, 257. But to enable the artisan to acquire the lien it must appear that the person from whom he has obtained possession of the goods was authorized to dispose of them for that purpose, 3 Parsons on Contract 242, either as owner, or with the owner’s consent express or implied. Scott v. Delahunt, 65 N. Y., 128; White v. Smith, 43 Am., 347; Small v. Robinson, 31 id, 299; Sargent v. Usher, 20 id., 208; Gilson v. Gwinn, 107 Mass., 126. A mere bailee for hire has no such authority. Small v. Robinson, 31 Am., 299; Lawson’s Rights, Remedies & Practice, vol. 4, p. 2983, § 1742. Accordingly it was held that a mechanic who was employed by another, with whom the owner had contracted for work upon a chattel, could not claim a lien in his own right as against the owner for the value of his share of the work performed, and this notwithstanding the fact that the owner knew that he was performing the work while it was in progress, Hollingsworth v. Dow, 19 Pick. (Mass.), 228; and that one who had in good faith purchased a chattel from another who claimed to be the owner, and had by the expenditure of a considerable sum for repairs greatly improved the value of the chattel before he had ascertained the true owner’s rights, could not, as against the latter, assert a lien for the expenditures. Clark, v. Hale, 34 Conn., 398.

The evidence is destitute of everything from which plaintiff’s consent to defendant’s right as lienor can be inferred, and the judgment should, therefore, be reversed, with costs to the appellants to abide the event.

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

Pryor, J., concurs.


text:
    Thomas Bowe, Resp’t, v. Cornelius C. Ellis, App’lt.

      (New York Common Pleas, General Term,

      Filed March 6, 1893.)

    1. Sale — Statute of frauds — Acceptance.
    Acceptance of the goods sold will take the contract out of the operation of the statute of frauds.
    2. Same.
    Where the vender of ponderous and bulky articles, on premises to which both have access, informs the vendee that they are his and requests him to remove them, and the vendee promises to do so and endeavors to sell the same to another person, this is sufficient proof of acceptance to take the sale out of the statute.
    Appeal from a judgment of the district court in the city of ¡New York for the fifth judicial district.
    Action by seller against purchaser of chattels to recover the agreed purchase money.

      Hahn & Myers, for resp’t; Chas. W. Coleman, for app’lt.
   Bischoff, J.

Assuming the defense that the contract of sale was within the statute of frauds and void because not in writing, to have been available under the pleadings, we are nevertheless of the opinion that the judgment appealed from is unassailable, since the evidence adequately supports a finding that defendant accepted and received the chattels which he agreed to purchase, whereby the contract under present consideration was removed beyond the operation of the statute. R. S., part 2, chap. 7, title 2, § 3, subd. 2 ; Banks & Bros. (7th ed.), vol. 3, p. 2328.

Having determined the question of the credibility of the witnesses in plaintiff’s favor, it was competent for the justice below to find from the testimony adduced on the trial that plaintiff and defendant orally agreed that if the former would purchase a mortgage, which the latter held upon certain chattels in the Stevens House, including a bar and back bar, for $1,850, he (defendant) would purchase the bar and back bar at the foreclosure sale for $200 ; that relying upon defendant’s promise to purchase the bar and back bar at the time and for the sum mentioned, plaintiff accepted an assignment of the mortgage and paid defendant $1,850, as agreed; but that at the foreclosure sale defendant failed to attend, whereupon plaintiff bid in the bar and back bar, and thereafter informed defendant that they were his at the price agreed, and requested him to remove the chattels, which the latter first promised and then failed to do, having meanwhile, however, made effort to sell them to one Underhill.

To prove acceptance and receipt of ponderous and bulky articles by the purchaser, it is not required that there should have been manual delivery by the seller. Atwell v. Miller, 6 Md., 10; 61 Am. Dec., 294. Virtual or constructive delivery is sufficient in any case. Bailey v. Ogdens, 3 Johns., 399; Castle v. Sworder, 6 Hurl. & N., 828; Sahlman v. Mills, 51 Am. Dec., 630. All that is required is that the goods be placed within the control and under the dominion of the purchaser, Marsh v. Rouse, 44 N. Y., 643, with intent on the part of both contracting parties to vest the right of possession as owner in the purchaser, Brand v. Focht, 1 Abb. Ct. App. Dec., 185; and proof of any act or acts from which it may be reasonably inferred that the seller has abandoned possession as owner, and that the purchaser has assumed if, is sufficient evidence of acceptance and receipt to take an oral contract of sale out of the statute of frauds. Jones v. Reynolds, 120 N.Y., 213; 30 St. Rep., 881; Gray v. Davis, 10 N.Y., 285, without further proof that the goods were actually transferred from one place to another.

In the case before us, the parties did not specifically agree upon a place for delivery. The place where the chattels were at the time of sale must, therefore, be presumed to have been intended as the place where delivery was to be made. Benjamin on Sales, 4th Am. ed., § 682. This was the Stevens house, to which both seller and purchaser had equal access, as licensees of the owner or his agent. The chattels were, therefore, upon neutral ground, in the actual physical possession of a third person, and so remained when plaintiff requested defendant to remove them, at the same time informing defendant that they were his. This request was tantamount to a declaration that plaintiff intended to relinquish his lien for the unpaid purchase money and his dominion of the chattels as owner. Thus there was nothing to hinder defendant from taking possession if he saw fit so to do. That such was his intention was manifest by his promise to remove .the chattels, and that his intention was executed, and dominion as owner assumed by him, was further manifested by his attempted sale to Under-hill, acts which were consistent only with his claim of ownership. Hence, there was both receipt and acceptance by defendant whereby the effect of the statute upon the contract of sale was avoided.

Instead of being authority to the contrary, we regard Shindler v. Houston, 1 N. Y., 261, as sustaining the position assumed by us. In the case -cited it was held that mere words indicating an intention to assume possession, uttered by the purchaser at the time of the sale, will not have the effect of receipt and acceptance of the goods, but that his subsequent acts, from which assumption of possession as owner may be inferred, are sufficient, though the goods themselves have remained in the place of their deposit' before the sale.

The judgment should be affirmed, with costs.

Pryor, J., concurs.


author: Per Curiam.

text:
    Elizabeth H. Culliford, App’lt, v. Montgomery Gadd, Resp’t.

      (New York Superior Court, General Term,

      Filed March 6, 1893.)

    1. Appeal — Undertaking—Sureties.
    Upon failure to except to sureties within the time allowed, the undertaking becomes perfect for the purposes of the appeal.
    2. Same — Failure to except.
    Defendant served a second notice of appeal and undertaking with new sureties, but the papers were returned by plaintiff on the ground that the dismissal of the first appeal and entry of judgment thereon barred the bringing of a second appeal, which position was not sustained by the court of appeals. Held, that such reason for the failure to except to the sureties is not sufficient to accord plaintiff an opportunity to examine them after the time to except had expired.
    Appeal from an order entered November 12, 1892, denying a motion made by the plaintiff in the alternative, first, to set aside the undertaking filed herein on the eleventh day of May, 1892, on account of fraudulent representations made by the sureties on said undertaking; or, second, to require the sureties on said undertaking to submit to an examination as to their qualifications.
    The action was brought to recover one thousand dollars alleged to have been paid by the plaintiff on fraudulent representations of the defendant judgment was entered in favor of the plaintiff after a' trial before a jury, and upon appeal the judgment was affirmed by the general term of this court.
    The defendant thereupon appealed to the court of appeals, but the undertaking on file was' canceled by an order of this court on account of the fraudulent justification of the sureties, and the appeal was finally dismissed by the court of appeals, and judgment entered upon the remittitur in this court. Executions were issued both against the property and the person of the defendant, but returned unsatisfied. Thereafter, on May 11, 1892, the defendant served a second notice of appeal and undertaking, with .new sureties, but said papers were returned on the ground that the dismissal of the first appeal and entry of judgment thereon barred the bringing of a second appeal. The defendant took no further steps in the case until several months later, when he noticed the appeal in the court of appeals, whereupon the plaintiff moved to strike the case from the calendar of the court of appeals. The court, however, denied plaintiff’s motion. The plaintiff thereupon moved this court, at special term, for the order from the denial of. which this appeal is taken.

      Sidney Harris, for resp’t; F. Spiegleberg, for app’lt.
   Per Curiam.

As the respondent failed to except to the sureties within the time allowed, the undertaking became perfect for the purposes of the appeal.

The reason advanced for the plaintiff’s failure to except to the sureties does not satisfy us that he should now be accorded an opportunity to examine them. If the circumstances of the sureties are at any time after the execution of the undertaking precarious, § 1308 of the Code of Civil Procedure suggests a way for relief.

We believe the order of special term should be affirmed, without costs.

Sedgwick, Ch. J., Dugro and Gildersleeve, JJ., concur.


author: Sedgwick, Ch. J.

text:
    Montgomery Queen, App’lt, v. George H. Bell et al., Resp’ts.

      (New York Superior Court, General Term,

      Filed March 6, 1893.)

    Appeal — Conflict of evidence.
    Where the conflict of evidence was strong and there is no fact or combination of facts that determine the case in favor of one party, the finding of the court below for the other party should he sustained.
    Appeal from a judgment dismissing plaintiff’s complaint entered upon findings of fact, etc., made by a judge at special term.

      H. B. Kinghorn, for app’lt; J. Stewart Ross, for resp’t.
   Sedgwick, Ch. J.

The relief claimed by the plaintiff was that he be adjudged the equitable owner of a lease taken by the defendants in their name and that they be adjudged to assign it to him.

The ground as claimed for this relief was that when defendant Bell obtained the lease, with the other defendant, French, Bell was the broker and agent of the plaintiff, employed to obtain a lease of the kind that was afterwards made. Apart from this ground the plaintiff makes no claim. The court has found that Bell was not the plaintiff’s broker and agent. The learned counsel for the appellant argues that this finding is contrary to the testimony. The conclusion argued for can only be reached by ascertaining that the credibility of the plaintiff and his witnesses is superior to that of the defendants and their witnesses. This does not here appear. The conflict between the parties was strong. There is no fact or combination of facts that determines the case in favor of the plaintiff and the finding below should be sustained.

Another finding, conclusive in its nature, must be sustained. It was found that the plaintiff gave up definitely his attempt to obtain the lease before' the defendants took the lease. This must also be sustained on the judge’s rendering of the facts.

Judgment appealed from affirmed, with costs.

GlLDERSLEEVE, J., concurs.


text:
    Montgomery Queen, App’lt, v. George H. Bell et al., Resp’ts.

      (New York Superior Court, General Term,

      Filed March 6, 1893).

    1. New trial — Newly discovered evidence — Affidavit.
    A denial of a motion for a new trial on the ground of newly discovered evidence is proper when the affidavit used to support the motion contains no proof of facts but of admissions, or rather inferences from them, said to be contained in an examination of a defendant taken in supplementary porceedings.
    2. Trial — Findings.
    The fact that in response to plaintiff’s request to find, the judge made the following note; “Each of the written requests is to he marked refused, except so far as covered by the findings and conclusions signed and settled by me,” is not ground for a new trial.
    Appeal from an order denying a motion by plaintiff for a new trial, made at special term, upon an affidavit and upon the case as settled.

      H. B. Kinghorn, for app’lt; J. Stewart Ross, for resp’ts.
   Sedgwick, Ch. J.

The first ground upon which the new trial was asked was that of newly discovered evidence. The affidavit used to support this was insufficient It contained no proof of facts but of admissions, or rather inferences from them, said to be contained in an examination of Bell, taken in proceedings supplementary to execution. But the examination was not produced. The facts intimated, rather than stated, were not of prevailing importance and some of them could not be given in evidence. It would appear that all that was relevant and that might have been proven could have been had upon the trial.

Another ground for asking a new trial was as follows:

In response to plaintiff’s requests to find, the judge made the following note; “ Bach of the within requests is to be marked refused, except so far as covered by the findings and conclusions signed and settled by me.” It would not seem necessary to grant a new trial for such reason. The merits were not involved. The mistake of form, if it were one, might be remedied by a motion to the judge himself, but, on the contrary, the plaintiff allowed the proceedings to go on to the settlement of the casé and did not ask that the judge should sign each request refused, etc. There seemed to be acquiescence in the action of the judge in respect of the requests of plaintiff.

Order affirmed, with costs.

GlLDERSLEEVE, J., concurs.


author: Dugro, J.

text:
    William T. G. Weymouth, Resp’t, v. The Broadway & Seventh Avenue Railroad Co., App’lt.

      (New York Superior Court, General Term,

      Filed March 6, 1893.)

    1. Negligence — Evidence—Secondary.
    Where the particular fact in question was whether the plaintiff on the day of the accident, for which he was suing for damages, had made a statement to a police officer inconsistent with his testimony at the trial, the entry in the police blotter offered as evidence of the fact is not admissible, as it is not the best evidence, that of the officer being better.
    2. Same.
    Such blotter was not admissible to contradict the officer, his attention not having been called to the statements therein, or to corroborate him, as for this it was but hearsay.
    3. Same — Railroad—Rules.
    In order to claim exemption under the General Railroad Act, Laws of 1850, chap. 140, § 46; which exempts a company from liability for accidents occurring in violation of its printed rules, the facts must be pleaded.
    Appeal from judgment in favor of plaintiff, entered upon verdict.

      Redington & Mayer, for resp’t; Root & Clarke, for app’lt.
   Dugro, J.

This is an appeal from a judgment entered upon a verdict.

The trial judge did not err in refusing to allow in evidence the entry in the police blotter. It was not admissible as proof of what the plaintiff said, for it was not the best evidence; that of Mr. McLaughlin was certainly better. It was not admissible to contradict McLaughlin, as his attention had not been called to the statements therein, and it was not admissible to corroborate McLaughlin, as for this it was but hearsay.

There was no error requiring reversal in the charge or refusals to charge. That part of the charge which referred to the lack of evidence of notice was not erroneous, for it did not appear that the notice was posted up or placed where it could be seen by the plaintiff. The only evidence upon the point is that “ it was on both sides of the inside of the car, about the center of the car.” As the evidence showed that the seats of the car were filled and persons were standing up, it became material to know with more particularity than is disclosed by the evidence just where the alleged notice was, in order that the jury could say whether or not it was a notice to the plaintiff or should be considered as such. It does not appear that with the seats filled the alleged notice was visible, and a guess is not permissible.

The refusal to charge defendant’s request “ that proof having been given that the notice required by the general railroad act was posted in the car on which the accident to the plaintiff happened, and that plaintiff. was riding upon the front platform and was upon the step of the car when injured, etc.,” was not error, as the defendant had not pleaded the facts which would entitle it to the exemption which it claims that the act in question' allows. The evidence required the submission of the questions of negligence and contributory negligence to the jury.

Upon the whole case the judgment should be affirmed, with costs.

Gildersleeve, J., concurs.


text:
    Harris Finkelstein, Adm’r, Resp’t, v. Charles Crane et al., App’lts.

      (New York Superior Court, General Term,

      Filed March 6, 1893.)

    1. Negligence — Charge.
    In an action for damages to plaintiffs intestate from the negligence of defendants’ servants, it appeared that the intestate, a child of five, was sitting on the street curb when a wagon driven by defendants’ servants was approaching, that on its approach the child ran towards the other side of the street, but was knocked down by the ho se and received injuries from which she died. The court charged without objection that the child “ had a perfect right to be in the street there and that the parents were not guilty of negligence in allowing it to be there.” Held, not ground for reversal.
    3. Same.
    In such case, the court properly refused to dimiss the complaint on the ground that there was no negligence on the part of the defendants and the plaútiffs child was in a position where it was unreasonable to expect a child of her age should be.
    Appeal by defendants from judgment entered upon verdict of a jury.

      Adolph L. Sanger, for app’lts; Alfred Steckler, for resp’t.
   Sedgwick, Ch. J.

The action was for damages to plaintiff’s intestate from the negligence of defendants’ servants. The testimony would have permitted the jury to conclude that the intestate, a child between five and six years old, was on the west side of Bid ridge street, sitting on the curb with her feet in the gutter; that a wagon driven by defendants’ servant, with one horse and a heavy load, was approaching; that on the approach of the wagon the child ran towards the other side of the street, but was knocked down by the horse after she had gone a short distance, and received injuries from which she died.

On this appeal it appears that there was no question as to that part of the case which relates to the negligence of defendants’ driver. It is insisted that there should be a reversal because of the charge of the court, that said that the child “ had a perfect right to be in the street there and that the parents were not guilty of negligence in allowing it to be there.” The defendants made no objection to this charge or to any part of the charge on the same subject. The defendants ma.de two requests to charge ■which were acceded to and referred only to the child as sui juris. The defendants made at the end of plaintiff’s opening case a motion to dismiss the complaint, on the ground under the ruling in Hartfield v. Roper, 21 Wend., 615,” also on the ground that there is no proof of any negligence.

If Hartfeld v. Roper, supra, held that, as a matter of law, it was negligence to be imputed to an infant non sui juris that he was upon a highway unattended, such a view of the case was not presented to the court below. In Kunz v. City of Troy, 104 N. Y., 347; 5 St. Rep., 642, it was said that this point was passed upon as a matter of fact After the citation by defendants’ counsel of Hartfield v. Roper, the court asked what was the ground of the motion. The reply was that there was no negligence on the part • of the defendants, and the plaintiff’s child was in a position where it was unreasonable to expect a child of her age should be. It cannot be said with certainty that the second branch did refer to a want of negligence of defendants’ driver, because he had no reason to expect that a child should be where the intestate was at the time of the accident.

If this w ere the meaning, and that were correct, it still remained the right of the plaintiff to ask a verdict that the driver did see the child while the latter was in peril, and might, by proper management, have prevented the accident.

But, if it referred to a negligence for which the intestate was responsible, it singled out one fact: that of a child, between five and six years of age, being in the street unattended. Such a fact was not, of itself, decisive. Nothing in the case showed, as matter of law for the court, affirmatively, that there had been negligence on the part of the child. It may have been that, at that point of the case, if it were assumed that the child was non sui juris, it was a question whether the plaintiff was bound to prove affirmatively that there had been no negligence of the parents óf the child. But this proposition was not presented to the court for decision.

It is argued that although there was no decision of the point, yet there were several statements in the charge, not objected to, that require this court to grant a new trial. In the charge there was a full statement of the law on the rights of infants sui juris and non sui juris. The only question that could be mooted was, whether the plaintiff, in case the infant was non sui juris, was bound to show that there was no negligence of the parents. This was at no time called to the attention of the court. If it had been, there would have been an opportunity for the plaintiff, in the court’s discretion, to give testimony on the subject.

The judgment is affirmed, with costs.

Dugro, J., concurs.


text:
    The Thomas Roberts Stevenson Company, Resp’t, v. Spencer Aldrich Impl’d, App’lt.

      (New York Superior Court, General Term,

      Filed March 6, 1893.)

    Contract — Building loan — Liens.
    A contract to advance certain sums as a building loan provided that none of the advances should be made if, when such advances become due, there should b; any lien or incumbrance upon the premises other than certain specified mortgages. The last sum became due when the buildings were completed. After the completion, but before the architect’s certificate to that effect was issued, certain taxes became a lien upon the property. Held, that such lien was not within the intention of the contract.
    Appeal from a judgment in favor of plaintiff entered on the report of a referee.
    Action brought upon a written order or assignment for the sum of $980, drawn by the defendant, Edward L. Beekman, on the defendant, Spencer Aldrich, and directing said Aldrich to pay to plaintiff said sum out of the final payment on a certain building loan contract between said Beekman and Aldrich.
    Said loan contract provided that none of the advances should be made “ if, when such advances become due according to the terms of this contract as above specified, there shall be any lien or incumbrance upon said premises other than the said mortgages held by the Brooklyn Trust Company, the mortgage to the party hereto of the first part {Aldrich) ” and certain mortgages which were to be subordinate to the building loan. It was also agreed that the advances were to be made only on the certificate of one Owen that the work had been completed.
    The buildings were substantially completed on November 1, except certain hasps which were supplied on the 10th., and on November 14th. the certificate of completion was obtained.
    On the 17th day of November, 1891, the defendant Beekman made a demand upon the defendant Aldrich for his final payment, and Aldrich refused to pay the same, whereupon the attorney for the defendant Beekman asked the defendant Aldrich for a certificate stating his reasons for not paying the final payment, whereupon the defendant Aldrich certified under his hand that his objection to paying the certificate was, that from the same should be deducted certain interest and taxes, and a further objection that five lis pendens had been filed to foreclose a mortgage, but no objection whatever was raised by said Aldrich that said buildings had not been finished and completed in every particular at said time said taxes had been levied during said month of November.

      Philips & Avery, for resp’t; Spencer Aldrich (Geo. Putnam Smith, of counsel), for app’lt.
   Per Curiam.

A careful examination of the case discloses no error requiring reversal. There was no lien or incumbrance other than the mortgages referred to in the agreement of June, 1891, upon the premises in question at the time the buildings were substantially finished. The taxes became a lien at a time subsequent to the completion. True, they were so prior to the receipt of Owen's certificate, but the agreement read “ that none of the above advances shall be made if, when such advance becomes due according to the terms of this contract as above specified, there shall be any lien, etc.,” and the terms referred to as above specified made no reference to the time of the receipt of the certificate, but read that the payment should be “ when the said five buildings are in all other respects completely finished.”

The referee has found upon conflicting evidence that the buildings were substantially completed November 1, 1891, and of this the appellant complains. Upon the whole case we are disinclined to disturb the finding, though the question with respect to it is one not free from doubt.

Judgment affirmed, with costs.

Sedwick, Ch. J., Dugro and Gildersleeve, JJ., concur.


text:
    Antoinette L. Milbank, Individually and as Administratrix, Resp’t, v. Morgan Jones, App’lt.

      (New York Superior Court, General Term,

      Filed March 6, 1893.)

    Res adjtjdicata.
    In an action brought by M. to recover $5,000, held in trust for him by defendant, and which trust had terminated, the answer was a general denial, and the trial resulted in a verdict for defendant, which was affirmed at general term, and reversed by the court of appeals. Thereafter M. died, but theretofore he assigned the cause of action to his wife, who was appointed his administratrix. Upon a petition setting forth these facts, none of which were disputed, the special term made an order on notice to defendant reviving the action and substituting M.’s widow, individually and as administratrix, as plaintiff, and that all papers and proceedings be deemed amended accordingly. Held, that the decision upon the motion was an adjudication as to the questions of law and fact then raised, and if there was error, in the absence of a supplemental complaint, it was to be corrected by appeal.
    Appeal by defendant from judgment entered upon verdict directed by the court, and from an order denying motion for new trial made upon the minutes.
    The facts of the case are stated in Milbank v. Jones, 57 N. Y. Super., 137; 25 St. Rep., 868, and the decision of the court of appeals is at 127 N. Y., 370; 38 St. Rep., 910.

      John M. Jones (Joseph Fettretch, of counsel), for app’lt; Booraem & Hamilton, for resp’t.
   Sedgwick, Ch. J.

The new question in the case refers to the right of the plaintiff to prosecute the action individually, and also as administratrix. The plaintiff had taken proceedings upon petition for leave to be made plaintiff as to her individual interest, and also as administratrix of the former plaintiff, then deceased. No supplemental complaint was served. On the trial the counsel for defendant made objection that the cause of action in the plain1 tiff individually could not be united properly with the cause of action in her as administratrix, and also that there was no proof of her personal interest or that she was administratrix. It will be seen that there was no issue as to these facts. No supplemental complaint had been served or required to be served. Probably the defendant, if he wished, could have procured a direction that such a complaint be served. Indeed the plaintiff’s petition asked leave to serve a supplemental complaint. On these facts it must be held, on the cases cited by the counsel for plaintiff, that the decision in the proceedings upon the motion is an adjudication as to the question of law and of fact then raised, and that if there were error in the decision, in the absence of a supplemental complaint, it was to be corrected by appeal. The ruling of the court below on this point should not be reversed.

The complaint alleges that the defendant, as trustee for the plaintiff, received $5,000 in trust; that by the terms and conditions of the trust it was provided and said trust was upon the express condition that the same might be terminated by the plaintiff on or after July 10, 1866, at his election.

To prove this, the plaintiff gave in evidence the following agreement, in writing: “ Received of R. W. Milbank $5,000, and also certificates for $250 shares, etc., the said money and stock to be returned to said Milbank in case” a certain resolution “shall not be passed and take effect before the 10th July next.”

There was.an objection to this by defendant’s counsel, that it did not sustain and was not the cause of action made by the complaint. The cause of action in the complaint was conditioned by the election of the former plaintiff. On the other hand, the agreement in testimony was the passing and the taking effect of a resolution before the 10th of July. It was urged that the defendant had had no notice to prepare for trial upon such an issue.

This point was considered in the opinions of the general term and must have been by the court of appeals. It must be deemed that the court of appeals held that it was not valid.

The other questions in the case have been determined, heretofore, unfavorably to the defendant Exceptions as to rulings upon evidence do not need to be considered. The verdict was ordered by the court and facts that were undisputed called for that direction, irrespective of the contests that concerned the evidence.

Judgment and order appealed from affirmed, with costs.

Dugro, J., concurs.


text:
    John Brennan, Guardian ad litem, App’lt, v. The Mayor, etc., of the City of New York, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1893.)

    Negligence — Contributory—Excavation in street.
    Defendant had caused a sewer trench to be excavated in a street, the earth being thrown out on the south side, forming an embankment about four feet high, while the other sides were protected by planks laid on barrels. There was sufficient space left at the ends for teams to pass. Plaintiff’s spn, a newsboy, twelve years old, instead of passing round the obstruction, walked up the embankment and as he turned to go back slipped and fell into the excavation and was injured. He claimed that the reason that he went that way was that the earth appeared to have been trodden by others. Held, that his contributory negligence was clear, and that a. dismissal of the complaint was proper.
    Appeal from judgment of nonsuit and from order denying motion for a new trial.
    Action to recover for personal injuries sustained by plaintiff’s son, James Brennan, by falling into an excavation in a street.

      N. J. & N. J. Waterbury, Jr., for app’lt; Theodore Connoly and Terence Farley, for resp’t.
   Per Curiam.

This action was brought to recover damages for personal injuries caused by the alleged negligence of the defendant, in failing to exercise due care to protect persons traveling on the public streets of the city from injury. Avenue A extends northerly and southerly, and is crossed at right angles by Ninetieth street. On the 5th of June, 1890, the citv caused to be excavated a sewer trench eight or nine feet deep, from five to eight feet in width, and extending from the west curb line of the avenue westerly, in Ninetieth street, sixty or seventy yards. The earth was thrown out on the south side of the trench, forming an embankment about four feet high, and extending the whole length of the excavation. At the time of the accident work on the trench had been suspended for the day, and it was protected on the north side by planks laid on barrels standing on end, on the south by the embankment, and on each end by planks laid crosswise. The plaintiff, a boy of twelve years of age, was engaged at the time of the accident in distributing and selling newspapers. He had resided in the city for five or more years, had attended its public schools and was familiar with its streets. He testified that between six and seven o’clock p. m. of June 5,1890, he went on the west sidewalk of the avenue from Eighty-sixth to Ninetieth streets, -on his way to Ninety-second street, for the purpose of delivering a newspaper to a customer. When he reached Ninetieth street he saw the embankment, which, he said, was a. little higher than his head. His father and another witness called by the plaintiff testified that there was room enough between the east end of the trench and the west rail of the nearest street car track for teams to pass. Instead of passing to the right, around the end of the trench, he walked up the embankment, and, as he was about turning back, -he slipped, and fell into the excavation, receiving some injuries, which are alleged to be severe and permanent in their character. He testified that he did not see the barrier on the north side of the trench nor the one at the east end. Impliedly, he seeks to excuse himself for not seeing the north barrier by stating that the bank was "higher than his head, and so obstructed his view, but there was nothing to prevent his seeing the barrier at the east end of the trench, had he looked.

The only reason which he gave for going on the bank was that at this point the earth appeared to have been trodden by others, who had preceded him. The fact that others, to gratify their cui’iosity, or for any motive, had walked upon this embankment, did not render the lad’s conduct less negligent. Before he reached the top of the bank he must have seen the barrier of planks and barrels on the north side, which, with the width of the opening, five to eight feet,- made it dangerous to attempt to cross it. The fact that he slid into the trench, instead of back into the street, shows that he had passed the highest point of the bank, and was -on the side sloping towards the excavation. These facts were testified to by the plaintiff, and by'witnesses called in his behalf, and we think it is clear, too clear for discussion, that the boy negligently contributed to his own injury, and that the city is not liable for the damages sustained by him. The learned counsel for the-appellant cites many cases in which it has been held that it was error for the court to take the question of the defendant’s negligence, or of the plaintiff’s contributory negligence, from the jury. The citations might be multiplied indefinitely, but would have thrown little light on .this case; for every action arising out of alleged negligent conduct must be determined by its. own facts, under the well-settled general rules applicable to this class of actions. We are also referred to cases holding that it is the duty of municipal corporations to exercise due care to keep their streets in safe condition, but it is difficult to see how this rule aids the plaintiff ; for assuming that more should have been done than was done by the city to guard the trench, it is apparent that the plaintiff was warned of the danger, which he failed to heed, and that the injury was the result of his own carelessness. No ruling was made by the court against the plaintiff upon the admission or rejection of evidence, and the only exception taken was to the order dismissing the complaint. Judgment affirmed, with costs.

Van Brunt, P. J.,' O’Brien and Follbtt, JJ., concur.


author: Follett, J.

text:
    Albert W. Todd et al., Resp’ts, v. James Gamble et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1893.)

    1. Contract — To manufacture — Delivery, when excused.
    In case a vendor agrees, by executory contract, to manufacture goods to be delivered from time to time, as ordered by the vendee, to be paid for on each delivery, and the vendee, after having accepted and paid for a part, gives notice that he will not receive and pay for the rest, the vendor may recover damages for breach of the contract without manufacturing or tendering the remainder of the goods.
    U. Same — Breach—Damages.
    In such case the measure of damages is the difference between the contract price and the actual value of the goods; which may be shown by the market price, or if there be none, by the cost of production.
    •3. Same — Market price — Burden of proof.
    Where the only evidence on the question of market value was the testimony of one of the plaintiffs, who testified to facts which would authorize a finding that there was no market value, but admitted that on a former trial he testified to the market value of the goods at the time the contract was made ,Held, that the witness being an interested one, his credibility was for the jury, and that the question as to whether there was a market value was one for the jury, and it was error to refuse to charge that the burden was on plaintiffs to prove that it had not before evidence of the cost of production could be received or considered by the jury.
    Appeal from a judgment entered upon the verdict of a jury in an action to recover damages for breach of contract
    This action was brought to recover damages for defendants’ failure to receive and pay for silicate of soda, to be manufactured and delivered under an executory contract
    The plaintiffs were engaged, in this state, in the manufacture and sale of silicate of soda, which is used in manufacturing laundry soap, in which business the defendants were engaged in the state of Ohio. The parties entered into a written contract by which the plaintiffs agreed to thereafter deliver, and the defendants to receive, free on board the cars at the city of New York, all the American silicate of soda of the plaintiffs’ regular standard make which the defendants should use in their business between March 1, 1887, and March 1, 1888, for one dollar and ten cents per hundred pounds.
    Under this contract, the plaintiffs delivered 150 barrels of soda in March, and 200 in April, 1887, containing 192,808 pounds, which were accepted and paid for. April 22, 1887, the defendants notified the plaintiffs that nó more silicate of soda would be received under the contract. It was conceded on the trial, that between the date last mentioned and March 1, 1888, the defendants purchased from other manufacturers and used in their business 1,582,468 pounds of American silicate of soda,

      Frederick R. Kellogg, for app’lts; Albert B. Boardman, for resp’ts.
   Follett, J.

The existence of the contract, and that it was broken by the defendants, were facts conceded on the trial, as was also the quantity of American silicate of soda which defendants purchased of manufacturers other than the plaintiff, ^tnd used in their business during the term for which the contract ran. In case a vendor agrees, by an executory contract, to manufacture goods, to be delivered from time to time, as ordered by the vendee, to be paid for after each successive delivery, and the vendee, after having accepted and paid for a part, gives notice that he will not receive or pay for the rest, the vendor may recover damages for the breach of the contract without manufacturing or tendering the remainder of the goods. Windmuller v. Pope, 107 N. Y., 674; 12 St. Rep., 292; Dingley v. Oler, 11 Fed. Rep., 373; Ripley v. McClure, 4 Exch., 345. In such a case the vendor is not entitled to elect between several remedies, as in case of a sale of goods in existence and identified, or in case goods are manufactured before the contract is rescinded, but he is confined to recovering the difference between the contract-price and the actual money value of the property at the time and place appointed for their delivery. Windmuller v. Pope, supra; Borries v. Hutchinson, 18 C. B. (N. S.), 445. This rule of liability, as well as the one above stated for ascertaining the amount of the liability, seems to be acquiesced in by the learned counsel for both parties tó this litigation. Both agree that when an ex-ecutory sale is made of articles having a market-value, which the vendee refuses to accept, the measure of his liability is the difference between the contract-price and their actual value, which the law deems equivalent to their value in the market. But, if the subject of the sale has no market-value, the measure of the vendee’s liability is still the difference between the contract-price and the actual value of the goods, the actual value being a factor in each case in determining the question of damages. When the value of the article cannot be determined by what it will sell for in the market, it must be ascertained in other ways, sometimes by showing the cost of production.

In this case the court ruled that the measure of the defendants’ liability was the difference between the contract-price and the cost of production, impliedly holding that, under the evidence, there was no question of fact as to whether the goods had or had not a market-value. The court was requested to charge that the jury could not consider the cost of producing the soda unless they found that it had no market-value, which was refused and an exception taken. The defendants also requested the court to rule and charge that the burden was on the plaintiffs to show that the silicate of soda had no market-value, before evidence of the cost of production could be received or considered by the jury, which was also refused and an exception taken. Thus the court determined, as a matter of law, that the article was without a market-value. We think this was error. One of the plaintiffs was the only witness called in their behalf on this question, who testified to facts which would have authorized the jury to have found that the goods had no market-value, but he admitted that, on a former trial, he testified to the market-price of the article at the time the contract was made, and for six months following. The witness being an interested one his credibility was for the jury. The evidence of Mr. Lincoln, taken on the former trial, was admitted on the last one, in which he stated the market-prices of silicate of soda between March 1, 1887, and March 1, 1888. The burden was on the plaintiffs to show that the article had no market-value, and under the state of the evidence disclosed by the record, whether it had or had not such a value was a question of fact for the jury, and not one of law for the court. In New York & Maine Granite Paving Co. v. Howell, 7 St. Rep., 494, damages were sought to be recovered from a vendee for refusing to accept paving granite. The plaintiff insisted that the actual value of the goods was to be ascertained by proving the cost of production, while the defendants contended that their market value was proof of actual value. The trial court held, as a matter of law, that the granite had no market value, and refused to submit that question, as one of fact, to the jury, which was held to be error.

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

O'Brien and Barrett, JJ., concur.


author: Barnard, P. J.

text:
    In the Matter of the Claim of William Lang, Ex’r, App’lt, v. The Estate of Eliza Stringer, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 13, 1893.)

    Executoks — Accounting—Restitution.
    On settlement of accounts the executor showed that he had delivered bank books to the co-executor, who was also the residuary legatee, and filed a claim against the estate, which was disallowed, but this decision was reversed on appeal and remitted to the surrogate, who thereupon allowed the same. Held, that the delivery of property under the first decree did not deprive the surrogate of power to compel restitution to the claimant executor.
    Appeal from part of decree of surrogate of Westchester county, adjudging “ that this court had no power to compel said Cecelia A. Howell to pay over to said William Lang said deficiency of $54, said commission of $93.75, said costs, $421.50, and said claim of $1,445.72, or either of them. That said William Lang be paid said amounts out of any assets remaining in his hands as executor, or which may hereafter be received by him as executor.”

      Arthur T. Hoffman, for app’lt; H. T. Dykman, for resp’t.
   Barnard, P. J.

William Lang and Cecelia A. Howell were, on the 20th of July, 1888, duly qualified as executors of Eliza Stringer, deceased. Both continued to act as such until Septemher, 1889. Lang was a creditor of the estate and Cecelia A. Howell was the general residuary legatee. In September, 1889, Lang filed his petition for a final settlement. All parties were cited. On the return day, September 23, 1889, Lang presented his bill. It was objected to and rejected. A new trial was granted, and upon the new trial the claim was allowed; but the court held that the delivery of the property under the first decree-deprived the surrogate of all power to compel restitution to the claimant, Lang. This is a hard rule. Lang had enough property to pay his claim until he was compelled to surrender it under an erroneous decree. The legatee was also executor and could not finally take, as legatee, untd the judgment on the distribution and final settlement was sustained. When the case went back to-the surrogate it stood in law as if the claim had been allowed in the first instance. There is no evidence in the case that Lang paid his co-executor or legatee. She had as much right to the possession of the assets as her co-executor, and neither she or her co-executor could give away to a legatee the assets until the debts-were paid. Lang’s debt was from the estate, and not from his co-executor, even if she was a legatee.

The judgment, so far as appealed from, should be reversed, with costs out of estate, and Lang be decreed entitled thereto out of the property on hand when he presented his claim.

Dykman and Pratt, JJ., concur.


text:
    Caroline Stehlin, Ex’rx, App’lt, v. Charles V. Stehlin et al., Resp’ts.
    The will in question gave to testator’s -widow all the remainder of his estate, real and personal, until the youngest child “ may become the age of majority,” directed the executors, when any of the children should marry to give them the sum of $5,000, and when the estate was divided such" advancements to be deducted, and the residue be divided equally among the children, except that one-third the estate be given the widow in lieu of dow< r. By the fourth clause it provided that in case the widow remarried, the executors should give her as her interest, and for support of the children, the sum of $1,800 a year and possession of the house rent free. Held, that the bequest in the first clause was good, and only a suspension of alienation during the minority of the youngest child ; that the-will gave the whole of the estate to the widow during such minority, subject to a right in each child upon his or her marriage to get $5,000 advancement, and in case the widow marries during such minority she is to have $1,800 a year with use of the house; at the end of the minority the estate is wholly free.

      (Supreme Court, General Term, Second Department,

      Filed February 13, 1893.)

    Will — Construction—Perpetuities.
    Appeal "from judgment adjudging the last will of Joseph Stehlin to be void, and that he made no valid testamentary disposition of his property.

      Cornelius E. Kene, for app’lt; Guggenheimer & Untermyer (Moses Weinman, of counsel), for resp’t, Charles V. Stehlin ; R. McKinlay Power, guardian ad litem.

   Barnard, P. J.

Joseph Stehlin, a resident of Westchester county, died in September, 1890, leaving a last will and testament, of which this is a copy:

In the Name of (rod, Amen. I, Joseph Stehlin, of New Rochelle, Westchestel’ county, being of sound mind and memory, and knowing the uncertainty of this life, do make, publish and declare this to be my last will and testament, as follows, viz.:

First. After all my just and lawful debts are paid, I give and bequeath unto my beloved wife all the real and personal property I may died seized and possessed of, nevertheless, until my youngest child may become the age of' majority.

Second. I hereby direct that my executors hereinafter mentioned shall at the time when any of my child or children shall marry, to give to such child or children the sum of $5,000, and I direct that when in the discretion of my executors hereinafter named they deemed it is necessary, they shall give to any such child or children the sum of $5,000; but when the estate shall be divided the sum that any such child or children may have received shall be deducted, and the balance or residue snail be divided equally, share and share alike, among my said children, except one-third of the entire estate shall be given to my wife as her right of dower.

Third. Should any of my said child or children marry and leave issue, then such interest that such child or children may be entitled to shall be divided among such issues share and share alike.

Fourth. But in case my wife shall remarry, I direct that my executors hereinafter named shall give unto my wife as her interest and for the support of my children the sum of $1,800 a year and the possession of the premises she now occupies, rent free.

Fifth. I direct that all the paintings and engravings that are now mine shall be, after my death,' put up at private or public sale at any time within five years from the time of my death, and when my executors, who are hereinafter named, shall be so' advised by some expert.

‘‘ Sixth. I hereby appoint my beloved wife, Caroline Stehlin, executrix of this my last will and testament, and John Sutter and Charles V. Stehlin to be the executors of this my last will and testament, giving and granting unto my said executors full power to sell and convey any and all my real estate or personal property, and to execute all necessary papers and conveyances, revoking all former wills by me made.

“ In witness whereof, I have hereunto subscribed my name, the 21st day of July, A. D., 1890. John Stehlin.”

The deceased left a widow and six children, who were, at the time of his death, and still are minors. A very considerable portion of his property was and is an equal undivided one-half share of land held by him and his brother, Charles Y. Stehlin, as tenants in common. Charles Y. Stehlin is one of the executors of the will. The entire estate is stated to be nearly $100,000. The question presented is, what is the true construction of the will ? The bequest in the first clause standing alone is good. The suspension of the power of alienation to a period of time described as “ until my youngest child may become the age of majority ” is only a suspension during the minority of the youngest child, Georgiana Stehlin, who was seven months old at testator’s death. Roe v. Vingut, 117 N. Y., 204; 27 St. Rep., 238.

This first clause is not, however, absolute. By the second clause, each of the children were entitled to $5,000 on their marriage, and this when they married during the minority of this infant child, Georgina. The testator meant to give something by the second section, and it is not reasonable to hold that he intended to compel his children to wait for the $5,000 until after so long a period expired, especially as his oldest daughter was seventeen years old at his death. In case the youngest child lived to his majority she would get nothing if she married until she was thirty-eight years old. By the second clause the widow is entitled to one-third of the estate, real and personal, as her right of dower, but she is entitled to it absolutely if she remains unmarried. By the fourth clause a change is made in case she remarry, and this, to me, is the most uncertain of all the other parts of the will. If she remarry, “ her interest and for the support of my children ” is cut down to $1,800 yearly and the use of the family residence, rent free. Is this to be a possession for life in lieu of dower and extending beyond the period when the youngest child became of age; or is it only inteñded to operate in case the wife marry again during the existence of such minority and which is to end when the minority ceases ?

The most reasonable construction is that this clause was only designed to provide for re-marriage while the period mentioned in the first clause was running, during the minority of the child. At the end of the minority she took absolutely the one-third of the estate, and there is nothing in this fourth clause which takes that away. At the end of the minority the estate will be wholly divided; one-third to the widow and the other two-thirds among the children equally. If the clause was designed to cut down the widow’s right under the second clause, some provision would be made to reserve the $1,800 a year until the widow died, so as to be on hand in case she married after the minority ceased. The will, therefore, gave the use of the entire estate to the widow during the minority of the youngest child, subject to a right in each child upon his or her marriage to get $5,000 advancement, and in case the widow marries during the minority of this youngest child she is to have $1,800 a year for herself and children’s support with the use of the house. At the end of the minority the estate is wholly free. There seems to be no good reason why the executor who owns one equal half of the real estate is disqualified from joining in a deed with the other executors if the two hold in common or in severalty the one-half of the deceased therein. He could certainly be appointed an attorney or agent for that purpose in testator’s life and he certainly can give the same power by will.

The decree should be modified accordingly, with costs to appellant out of the estate.

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


author: Pratt, J.

text:
    In the Matter of the application of Simeon W. Smith, App’lt, v. The Village of White Plains, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 13, 1893.)

    1. Municipal corporations — Change op grade op street.
    An abutting owner has no vested interest in the grade of a street as established, and a change of grade is not the taking of private property. The right of an abutting owner to recover damages for such change of grade is wholly statutory.
    2. Same — Constitutional law.
    Chapter 315, Laws 1890, declaring that chap. 113, Laws 1883, shall not apply to alterations of highways in the village of White Plains, is not unconstitutional. The legislature had power to repeal the act of 1883, in whole or in part.
    Appeal from an order made by his honor Justice Barnard denying the application of the petitioner for the appointment of commissioners of appraisal, under chapter 113 of the Laws of 1883, to ascertain the amount of damage alleged to have been sustained by him in consequence of the changing of the grade of Chatterton street, in the village of White Plains.
    The street in question has been a public highway for many years. The petitioner’s lands lie on both sides of the highway. The grade of the street was changed, and this proceeding was brought for the appointment of commissioners of appraisal. The answer alleged that, by chapter 315 of the Laws of 1890, the village of White Plains was exempted from the provisions of chapter 113 of the Laws of 1883, the latter being the act under which the proceeding was commenced.
    The constitutionality of a portion of the new charter of the village of White Plains is thus brought in issue, and the court asked to pass upon the same. The village of White Plains was incorporated by chapter 351, Laws of 1866, and by § 6 of chapter 493 of the Laws of 1884, was declared to be a separate road district ; and the trustees of said village were given by law all the powers of commissioners of highways in towns, the latter provision still remaining in force.
    By chapter 315 of the Laws of 1890, said charter was amended as follows:
    § 20. The board of trustees shall also have power to change or alter the grade of any street, avenue, highway or bridge in said village (laid out or accepted by said village), and to grade and regrade the same, and the expense of such changing, altering, grading or regrading, and all damages to adjoining property occasioned thereby, or to the use thereof, shall be assessed upon the real property fronting on said street or avenue benefited thereby, in proportion to the amount of such benefit, by three disinterested resident freeholders of said village, to be appointed by the board of trustees. Such assessment shall be signed by the persons so appointed, and delivered by them to the board of trustees, who shall give public notice in two newspapers, published in said village, that the same has been so left with said board, and that the said board will on a certain day therein stated, which shall not be less than fifteen days from the date of the first publication of such notice, proceed to confirm the said assessment. During that period any person interested may appeal from the same to the said board of trustees, who may determine such appeal and alter such assessment in such manner as in their opinion justice may require. The same may be then confirmed by said board without further notice. All such assessments shall constitute a lien upon the lands and premises respectively upon which they shall be made. The freeholders appointed under the provision of this section to make such assessments shall receive for their services respectively the sum of five dollars per day. The provisions of chapter 113, of the Laws of 1883, entitled “ An act in relation to alterations of highways, streets or bridges, in incorporated villages,” and the acts amendatory thereof, shall not apply to the street, avenue, highway or bridge so changed or altered under the provisions of this section."

      Wilson Brown, Jr., for app’lt; H. T. Dykman, for resp’t.
   Pratt, J.

The appellant’s contention is based upon the idea that an abutting owner has a vested interest in the grade of a street as established, and that a change of grade is a taking of private property. We believe this to be an error.

The right of an abutting owner to recover damages for a change of grade in a street depends upon statute and in many, and perhaps most cities of the state, does not exist. Legislature had the power to repeal the law of 1883 in whole or in part.

We do not see that a land owner in White Plains has any more right to complain that he has lost the benefit of the act of 1883 than a land owner in Brooklyn has that he has never been allowed such relief.. The remedy provided for the White Plains land owner may be imperfect, but for similar injuries property holders in other localities have no remedy whatever.

Dismissing the petition on the grounds set forth was in effect sustaining a demurrer. We think there was a trial of the legal question.

Order affirmed, with costs.

Cullen and Brown, JJ., concur.