author: Follett, J.

text:
    The People ex rel. Bryant W. Dinsmore, App’lt, v. Thomas F. Gilroy, as Mayor, etc. et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 14, 1894.)

    Statutes—Permission.
    Chap. 568 of 1888, as amended by chap. 291 of 1891, as it does not declare, but leaves to be determined, the justice of the claim mentioned therein, is merely permissive, and a peremptory writ of mandamus is not an appropriate remedy to compel the allowance of such claim.
    Appeal from an order refusing a peremptory writ of mandamus.

    In the years 1868 to 1871, inclusive, S. P. Dinsmore & Co. published at the city of New York a weekly paper called the "Stockholder,” during which time official notices, and proceedings o.f public boards and officers of the city and county of New York, required by law to be published, were published in that paper,— some pursuant to the order of the then mayor and comptroller of the city, and some pursuant to the order of the mayor. The first publication charged for was made October 6, 1868, and the last one October 10, 1871. On the 18th of May, 1872, the firm presented to the financial department of the city a claim for such publications, amounting to $70,962.94, which was submitted to the examiners of said department, who reported January 11,1873, that there had been published in the paper 138,447 lines of official matter, which, at the customary rate for such work,-—25 cents a line,—amounted to $34,611.75 ; but they found that 110,721 lines were published without being authorized by both the mayor and comptroller of the city, which left 27,726 lines which were published by the direction of both officers, which, at 25 cents a line, .amounted to $6,931.50, at which sum they recommended that the •claim be allowed. On the 11th of January, 1873, the claim was audited by the board of apportionment and audit at $6,931.50, which was paid to the firm January 16, 1873. Before the comptroller wo.uld pay the sum, he insisted that a release of all demands should be executed, which was done; but, concurrently with its delivery, it is alleged by the relator that the firm filed a protest against the payment being considered in full of all demands. But a single publication is charged for in 1868,—an item ■of $7.20,—which was allowed January 11, and paid January 16, 1873. The following are the statutes authorizing and regulating the publication of official proceedings of the boards and officers of the city of New York in the years 1869, 1870, and 1871: By •section 1, c. 854, Laws 1868, passed June 3, 1868,—“An act to make provision for the government of the county of New York,” —the sum of $30,000 was appropriated, as follows: “Advertising for the board of supervisors and county government, thirty thousand dollars ; but no payment shall be made therefor except for advertising in newspapers designated for that purpose by the mayor and comptroller.” By section 1 c. 875, Laws 1869, passed May 12, 1869,—“An act to make provisions for the government •of the county of New York,”—it • was provided: “Advertising, forty thousand dollars. The mayor and comptroller shall, from time to time, designate six daily newspapers and six weeklies, but no more, in which to publish the proceedings of the board of supervisors, and all proceedings and notices relating to county affairs.” By section 1, c. 383, Laws 1870, passed April 26,1870,—“An act to make further provision for the government of the city of New York,’’—it was provided : “Advertising for common council, forty-five thousand dollars. All advertising for the city government hereafter, including the legislature and executive departments, and in street and assessment proceedings, shall be published in not .more than seven daily and six weekly newspapers, printed and published in said city, to be designated from time to time by the mayor and comptroller of said city, and it shall not be lawful for .any officer to pay or allow to be paid any money for advertising hereafter made or incurred, of any description for or on account of the corporation, except to such newspapers, and any such officer making or allowing any such payment shall become personally liable for the amount so paid.” By section 1, c. 574, Laws 1871, passed April 18, 1871,—“An act to amend an act entitled ■‘An act to reorganize the local government of the city of New York,’ passed April fifth, eighteen hundred and seventy,”—it was provided: “On or before the first Monday of June in each and «every year, the mayor and comptroller shall, by a certificate in writing filed in the office of said comptroller, designate one daily paper published in the city of New York to be the official journal of said city, and in which shall be published all matters herein required to be published, as well as every notice or advertisement, ■corporation or legal, which may be required by law or ordinance to be published in one or more papers in the said city or county. If such notice or advertisement is required to be published in only one paper, then such publication shall be in said paper; but if such notice or advertisement is required to be published in more than one paper, then one of such requisite papers shall be the paper so designated as the official journal. The mayor and comptroller shall also, in writing to be filed in the office of said comptroller, designate from time to time nine morning or evening daily newspapers, and nine weekly newspapers published in the ■city of New York, to publish such digest of the proceedings of the common council as may be prepared and authorized under the direction of said mayor and comptroller and also to publish such notices or advertisements required by law or ordinance to be published in corporation papers, which designations shall be authority to the several newspapers so as aforesaid designated to publish as aforesaid. No publication of corporation proceedings or notices or advertisements, as aforesaid, shall be legal except in the newspapers selected°as above provided, and no money shall be paid from the city treasury for advertising for the city thereafter except to the newspapers so selected. It shall be the duty of any officer authorizing any publication in either of said papers to furnish an order signed by him or by his authority as to the publication thereof, and such order shall be attached to all bills paid ; and no bills shall be paid without such order be attached, and in addition the bill shall always be certified by the officer under whose direction such publication is made. But no final judgment against the said city heretofore obtained or which. may hereafter be obtained for the publication of any such advertisements shall be allowed or paid from the treasury of said city, unless such advertisements were published in those newspapers which may be designated by the mayor and comptroller in pursuance of this section, and no execution shall be issued on any final judgment based upon any claim for such advertisements in any newspaper unless in such newspaper to be designated as herein provided."
    When the publishing was done and the aforesaid payment mad© the firm consisted of Samuel P. Dinsmore and Mary Y. Bean, and in July, 1881, the latter sold her interest in the firm and claim to the relator, who then became a member of S. P. Dinsmore & Co., which continued in business- until April, 1892, when Samuel P. Dinsmore died, leaving the relator the sole surviving partner. In 1874 or 1875 an action was brought against the city (67 Barb. 341) to recover the claim, less the $6,931.50 paid, in which theplaiutiffs were defeated because the advertising had not been ordered by the mayor and comptroller. The city having refused to-pay any further sum for the service, a statute was passed June 9, 1888 (chapter 568, Laws 1888), and was amended by chapter 291, Laws 1891, which provides:
    “Section 1. The board of estimate and apportionment of the city and county of New York is hereby authorized to examine into-the facts relating to the claim of the representatives of the firm of S. P. Dinsmore and Company, for advertising in the newspaper, the Stockholder, notices and proceedings required by law to be published in said city and county, and to audit and allow the said claim for advertising said notices and proceedings as have been reported by the special examination of the department of finance of said city, to have been inserted in the said Stockholder, at the usual and customary rates for advertising in said newspaper, so far as the same shall be found not to have been heretofore audited,, allowed and paid. And the said comptroller is hereby authorized to pay to said representatives the amount of the claim as so audited and allowed, with interest.
    “Sec. 2. The amount so audited and allowed shall be credited-by the comptroller to the board of aldermen of the city and county of New York, and shall form part of the final estimate of said city and county for the year eighteen hundred and ninety-one."
    After the passage of this act the claim was again presentedtothe board of estimate and apportionment, which refused to take any action thereon, and March 20, 1894, a peremptory writ of mandamus was granted, requiring the board to “forthwith take up and audit the claim referred to in chapter 291 of the Laws of 1891.” The writ further provided, “Beyond this this writ does-not run, nor is this writ to operate as an adjudication upon the question whether the act known as chapter 291 of the Laws of 1891 is or is not mandatory upon the board of estimate and apportionment as to the amount to be allowed.” Pursuant to this writ the board appointed a hearing, of which the relator , had notice; and after taking the evidence offered by both sides, and hearing counsel, the board made its return, on May 28, 1894: “(8) That on said 22d day of May, at said meeting of the board oí estimate and apportionment, and after the making’and filling of the board [report] of said committee, and after hearing Eoger Poster, Esq., as above set forth, the said board of estimate and apportionment of the city of Hew York did take up and audit the claim referred to in chapter 291 of the Laws of 1891, and did audit and allow said claim at nothing.” On June 25, 1894, the relator moved for a peremptory writ of mandamus requiring the board to audit and allow the claim for publishing 110,721 lines at 30 cents a line, amounting to $33,216.30, besides interest, and requiring the comptroller to pay the same. The motion was denied, •and from the order the relator appealed.

      Roger Foster, for app’lt; Charles Donohue, for resp’ts.
   Follett, J.

It must be borne in mind that the relator applied for a peremptory writ, and did not offer to take an alternative one. The facts upon which the rights of the litigants must be determined are not disputed.- It is agreed that S. P. Dinsmore & Co. published 27,726 lines of official matter upon the. order of the mayor and comptroller, for which the firm has been paid $6,-981.33, at the rate of twenty-five cents a line, and gave a release of all demands against the city. The city admits that the firm published 110,721 lines upon the- order of its mayor alone, for which the city has refused to pay. The firm brought an action against the city to recover for this work, and was defeated because the comptroller did not join with the mayor in ordering the work. Under this state of facts the statute quoted was passed, and the principal question involved in this appeal is whether the statute is mandatory or permissive. In case the language of a statute authorizes a public body or a public officer to do an act, using the word “may,” and the act authorized relates to the interests of the public, or to the rights of persons, or if the act authorized be to promote justice, the word “may” is generally considered to mean “ shall,” and the statute is deemed mandatory, and not permissive. People ex rel. Otsego Bank v. Supervisors of Otsego County, 51 N. Y. 401; People ex rel. Conway v. Supervisors of Livingston County, 68 N. Y. 114; Sedg. St. Law (2d ed.) 375. This is a well-settled rule of construction, and the cases wherein it is laid down are referred to in the above authorities, and it is unnecessary to cite them again. But when the rule is invoked in aid of a personal right the right must be an existing legal one, and not one which the board or officer is by statute authorize to create. Gilmore v. City of Utica, 121 N. Y. 561; 31 St. Rep. 880; Buffalo & B. P. R. Co. v. Commissioners of Highways, 10 How. Pr. 239; Newburgh Turnpike R. Co. v. Miller, 5 Johns. Ch. 161 ; Sedg. St. Law (2d ed.) 375 et seq.; Potter’s Dwar. St. 220; and End. Interp. St. § 313. In Gilmore v. City of Utica, supra, it is said that, before this rule of construction will be applied in aid of a public interest or of a private right; “there must be a definite, plain public interest, or a vested, well-defined private right, and then it will very justly be supposed that the legislature meant to subserve or protect the public interest, or to give or secure the private right.” The limitation that the statute must relate to an existing private right, before “ may ” shall be construed to mean ‘- shall,” is as firmly settled as the general rule first above stated.

The statute under consideration does not relate to a public interest, and it is conceded by the relator that prior to the statute (chay. 568, Laws 1888) he had no existing legal right to recover for the services rendered. It has been so held by the supreme court in an action brought against the city, which judgment was not appealed from, and is conclusive. Should “ may ” be construed “ shall” on the ground that the statute was passed to do justice to the relator ? This inquiry brings us to the question whether the statute recognizes the justice of the claim, for unless it does, expressly or by fair implication, the act will not be held to be mandatory. Clearly, if the justice of the claim is not declared, but left to be determined, the statute must be held to be a permissive one, and a peremptory writ of mandamus is not an appropriate remedy. This statute does not expressly declare the claim to be a just one, or direct that it shall be paid, nor can it be implied from the language of the act that the legislature passed the statute because it deemed the justice of the claim established. The language is, “ The board of estimate and apportionment of the city and county of New York is hereby authorized to examine into the facts relating to the claim.” What facts are they to examine into? The learned counsel for the relator says that the board had authority to determine simply what were the customary rates of the Stockholder, for such work. In other words, that it was intended by the statute to require the city to pay the customary rates for advertising the notices and proceedings “ reported ” by the special examination of the department of finance to have been published in the Stockholder. After having examined into the facts, the board is to “ audit and allow ” the claim for advertising notices and proceedings, which, according to the report of' the department of finance, had been published in the Stockholder, at the usual and customary rates for advertising in that paper. To audit an account is to examine and ascertain whether it is accurate. To allow an account or claim is to accept or admit it as a legal demand. The authority to audit and allow an account primarily implies the right to determine whether it is an accurate and just claim. Morris v. People, 3 Denio, 381,391; People v. Supervisors of St. Lawrence, 30 How. Pr. 173 ; People v. Green, 64 Barb. 162; 5 Daly, 194; People v. Supervisors of Oneida County, 24 Hun, 413; In re Murphy, Id. 592; People ex rel. Myers v. Barnes, 114 N. Y. 317; 22 St. Rep. 164; and 23 St. Rep. 795. Authority in a statute to allow an account does not necessarily negative the existence of power to disallow it. People v. Supervisors of Dutchess, 9 Wend. 508. Of course, the word “ allow ” may be so used in connection with other words in a statute as-to negative the idea of power to disallow, but we think it is not in this statute. The right of a municipal corporation to litigate the validity of claims made against it should not be denied, unless deprived of the right by a statute so unequivocal that it needs neither argument nor illustration. to make the legislative intent manifest. In other words, in case the legislature intends to compel a municipality to pay a particular claim, which it is not legally liable to pay, it must say so out and out. A statute like the one under consideration can easily be passed on the plea that it simply confers authority on the corporation to pay the claim if, after an examination into the facts, it is found to be just; but a plain statute, commanding a municipality to tax its citizens for the purpose of paying a claim conceded to be illegal, would not readily be enacted. Applying these rules to the construction of this statute, we do not think it required the board of estimate and apportionment to audit and allow the relator’s claim against the city for publishing 110,712 lines at the usual rates regardless of whether the claim was just.

The order Should be affirmed, with.costs.

All concur.


source: Caselaw Access Project

author: Follett J.

license: Public Domain

text:
    The People ex rel. Bryant W. Dinsmore, App’lt, v. Thomas F Gilroy, as Mayor, etc., et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 14, 1894.)

      Roger Foster, for relator ; Theodore Connoly, for resp’t,
   Follett J.

On the appeal from the order refusing a peremptory writ of mandamus, we have held that chapter 568, Laws 1888, as amended by chapter 291, Laws 1891, is not mandatory, and that the board of estimate and apportionment is not required to audit, allow, and pay the relator’s claim, without regard to its validity, but that under the statute the board has authority to determine whether the claim is valid. The undisputed evidence is that the advertising for which payment is sought was not ordered by the mayor and comptroller, but by the mayor alone. For this reason this court held, in an action brought by the relator’s firm against the city for the recovery of this claim, that it is illegal and not enforceable, which judgment has not been appealed from, but remains in full force, 64 St. Rep. 480; 811ST. Y. Supp. 776. The advertising was done when chapter 854, Laws 1868 ; chapter 875, Laws 1869; chapter 383, Laws 1870; and chapter 574, Laws 1871,—were in force, and regulated the manner of advertising and publishing official notices and proceedings. It is not contended that the advertising was ordered and performed in compliance with these statutes, and it is plain that the relator has no legal claim against the city for the work which has been done. The statutes referred to are set forth in the opinion on the appeal from the order refusing a mandamus, and an extended reference to them in this opinion is quiet unnecessary. We have also held in the case referred to that chapter 568, Laws of 1888, as amended by chapter 291, Laws 1891, does not create a liability on the part of the city to pay the claim, or any part thereof. It follows that the determination of the board of estimate and apportionment should be affirmed, with $50 costs and disbursements. All concur.


author: Parker, J.

text:
    Elias M. Ball et al., Resp’ts, v. George B. Stover et al., as Surviving Partners, etc., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 14, 1894.)

    Contract—Statute of frauds.
    The invalidity of a verbal contract of employment, void under the statute of frauds, cannot be asserted by either party after its full performance, and such contract affords an adequate basis for an inference as to the intention of the parties in continuing to perform and to accept the services after the term specified, to extend it for another term.
    Appeal from a judgment in favor of plaintiffs.

      H. V. Borst, for app’lts ; Louis H. Hahlo, for resp’ts.
   Parker, J.

The referee found that in September, 1890, a verbal agreement was entered into between plaintiffs and defendants by which the former were employed as the selling agents of the latter for a period of one year from January 1, 1891; that the agreement for such year was fully kept and performed by both parties; and that without a modification of the original agreement, or a suggestion in that direction, by either of the parties, the plaintiffs continued to serve the defendants in the same capacity, and received therefor the same rate of compensation, until February 25, 1892, when plaintiffs were discharged without cause. Upon this conduct of the parties the referee has based an inference of fact that the contract of employment was renewed for the period of one year from January 1, 1892, and has awarded to the plaintiffs the damages sustained by reason of their discharge. His conclusion in such respect is in accord with the established rule where the employment is for a year’s service at a yearly salary. Adams v. Fitzpatrick, 125 N. Y. 124; 34 St. Rep. 859 ; Wallace v. Devlin, 36 Hun, 275. The same rule applies where the employment is by the year, the compensation to consist of commissions instead of a salary. Dean v. Woodward, 52 Hun, 421; 24 St. Rep. 461. Appellants’ contention that the.general rule will not apply, because the contract of employment for 1891 was within the statute of frauds, and void, is not well grounded. While the original contract was not enforceable so long as it remained executory, yet, when fully and voluntarily performed by both parties, its invalidity could no longer be asserted by either, and it afforded adequate basis upon which to predicate an inference of fact as to the intention of the parties in proceeding in accordance with its terms upon a further term than that provided by it. Adams v. Fitzpatrick, supra; Hodge v. Newton, 13 St. Rep. 139. The finding of the referee to the effect that the first employment was for the year 1891 is challenged by the defendants. The evidence upon that subject is not so full as could be wished, but such as there is tends to and is sufficient to sustain the finding. One of the defendants said on his direct examination that the contract for plaintiffs was for the year 1891. On cross-examination he said that his testimony referred to the contract set up in his answer as the contract made for the year 1891. It is now urged that his evidence does not amount to an admission that the contract upon which plaintiffs have recovered was for the year 1891. But the suggestion is without force. Defendants had but one contract with the plaintiffs prior to the renewal contract. It was made in September, 1890, and both the complaint and answer referred to it, although differing as to its terms. It was while speaking of the terms of this contract that defendants said it was for the year 1891. The record contains no evidence to the contrary. The judgment should be affirmed, with costs.

All concur.


author: O’Brien, J. Follett, J.

text:
    Catharine T. Smith et al., as Executors, etc., App’lts and Resp’ts, v. Mayor, Aldermen and Commonalty of the City of New York, App’lt and Resp’t.

      (Supreme Court, General Term, First Department,

      Filed December 14, 1894.)

    1. Municipal corporation—Assessment.
    The assessment for a sewer, constructed, not by contract, but by day’s work, begun after chap. 835 of 1873 took effect, is void.
    3. Same—Work in progress.
    Work on a sewer, commenced on the day before the said act took effect, was “ in progress ” within its meaning, and an assessment for such sewer is valid, though it was constructed by day’s work.
    Appeal by both parties from a judgment in favor of plaintiffs.

      John Kavanagh, for pl’ffs ; Geo. L. Sterling, for deft.
   O’Brien, J.

The action was brought to recover sums paid by plaintiffs for two assessments for sewers in the Boulevard. The first was an assessment for sewers between 92d and 106th streets, and the second an assessment for sewers between 61st and 77th streets. By the judgment the plaintiffs recovered the first, but were nonsuited as to the second; and it is from the refusal to allow a recovery for the second assessment paid that the plaintiffs appeal, while the defendant appeals from so much of the judgment as allows any recovery.

Questions involving assessments for the improvement of the Boulevard have been before this court and the court of appeals so many times that it is unnecessary to recite the facts at length, it being sufficient to state only those that present the questions raised upon this appeal. Between the years 1872 and 1876 the construction of the Boulevard between 59 th and 154th streets was in progress by men employed by day’s work, and not by contract. This construction included, not only the regulating and grading of the Boulevard, but the building of the sewers. With respect to the latter, the area to be covered being nearly five miles long, and the grades varying greatly, it was divided for purposes of sewerage, into five sections, which, when completed, resulted in five assessments, one for each of these sections or subdivisions, the assessments being confirmed in 1881. The charter of 1873 (chapter 335, Laws 1873) went into effect on the 30th of April of that year, and required that all contracts must be let at public letting, if for more than $1,000, “ excepting such works now in progress as are authorized by law or ordinance to be done otherwise than by contract.” The work on the sewers was all done by day’s-work, and the amount upon each section was greatly in excess of $1,000. When the question was first presented it was sought to sustain the legality of the assessment for the entire sewer by claiming that the work in progress upon one section was.work in progress upon each subdivision thereof. This, however, was disposed of by the court of appeals (In re Blodgett, 91 N. Y. 117) adversely to the city. Upon the authority of that case, the assessment levied upon the plaintiffs’ property for the section of the sewer between 92d and 106th streets was void, it being conceded that it was for more than $1,000,- and was all done,, not by contract, but by day’s work admittedly commenced after the passage of the charter of 1873. Tripler v. City of New York, 125 N. Y. 617; 36 St. Rep. 141; Id., 139 N. Y. 1; 54 St. Rep. 419. Although conceding the technical illegality of such assessment, the defendant insists that no recovery of money so paid can be had, upon the ground that the remedy by suit of this nature has-been taken away by statute, and that the payment must be considered to have been made voluntarily. Upon this claim the recent decision of this court in Mutual Life Ins. Co. v. City of New York, 79 Hun, 482 ; 61 St. Rep. 250, is controlling upon this court. As to the section between 61st and 77th streets, the testimony shows that on April 29th (one day before the charter of 1873 went into effect) the sewer excavation was begun, there being employed on that day on that section a foreman, a blaster, forty-one rockmen,. eleven laborers, one blacksmith, three carts, and eight double teams, and on the next day the work was continued, and right, along afterwards, until completed, by day’s work. The question presented is as to whether work upon this section can be regarded as work then in progress.

In re Blodgett, supra, it is said: “We have recently considered the meaning of the phrase ‘work in progress,’ as used in the charter, and the scope and purpose of the exception thereby declared. In re Weil, 83 N. Y. 543. In that case we expressed the opinion that the purpose of the exception was to avoid the evil and complication arising from an application of the contract system to work already commenced and moving towards completion in a different manner, and was descriptive of cases where the city was already committed to a specific mode of doing the work, and could not change the system without complication or confusion. * * * The exception of the charter had an evident purpose and aim. The general and dominant idea was to do all of the city work by the contract system, and that, only, was intended to be exempted which was already begun, which was ‘ in progress ’ on a system and in a mode of its own, and which could not be interfered with unless at the peril of evil consequences.”

Under this definition of what is meant by the phrase “ work in progress,” a close question is presented whether such work as was-done on the day preceding the taking effect of the charter was sufficient to bring it within the exception, and permit of its being continued otherwise than by contract. On one side it can be urged with much force that work could have been stopped at- once without occasioning any complication or confusion' or evil consequences to the city, and a contract let therefor without such action coming in conflict with any different system. On the other hand, the making of the surveys, profiles, etc., coupled with the fact that work was actually commenced, argues strongly for the validity of the assessment under a liberal construction of the language used in the charter. When we recall the advantage and benefit that, this Boulevard was to the abutting property, and the injustice to be done by placing the assessment upon the city at large, we think that a liberal construction should be indulged in in support of the assessment. We are therefore of the opinion that the judgment, was right, and should be affirmed, without costs to either party upon this appeal. Van Brunt, P. J., concurs.

Follett, J.

(dissenting).—I concur in that part of the prevailing opinion which sustains the recovery for $2,844.85, but dissent from that portion which denies the plaintiff’s right to recover $7,371.83, the amount of the taxed collected, with interest, on account of the work done on the second section between 61st and 72d streets.

Section 91, c. 335, Laws 1873, provides: “ Whenever any work is necessary to be done to complete or perfect a particular job, or any supply is needful for any particular purpose, which work and job is to be undertaken or supply furnished for the corporation, and the several parts of the said work or supply shall together involve the expenditure of more than one thousand dollars, the same shall be by contract, under such regulations concerning it as shall be established by ordinance of the common council, excepting such works now in progress as are authorized by law or ordinance to be done otherwise than by contract.”

The exception in italics relates to particular works in progress-April 30, 1873, wheh the statute took effect, which had then been authorized by law or ordinance to be done otherwise than by contract. Two conditions must have existed April 30,1873, to bring-the Boulevard sewer within the exception : (1) The work must have been in progress ; and (2) i.t must have been “ authorized bylaw or ordinance to be done otherwise than by contract.” Our attention has not been called to any law or ordinance authorizing this particular work to be done otherwise than by contract. On the contrary, the undisputed evidence is that there was no such ordinance, and so the work on this sewer is not within exception. Laws 1870, c. 137, § 104. In re Robins, 82 N. Y. 131. Notwithstanding the statute, and the fact that there was no law or ordinance authorizing the construction of this sewer otherwise than by contract, the commissioner of public works constructed the whole of it by day’s work. This sewer is about five miles long, divided into five sections, numbered from 1 to 5, every one having a separate outlet. The property assessed was divided into five assessment areas corresponding with the five sewer sections, so that the expense, or a portion thereof, of constructing each section, was assessed on the benefited that section. Prior to April 30, 1873, uo work had been done on any part of this sewer except that performed the day before on section 2 ; and it has been held that the work was not in progress on the other sections (Nos. 1, 3, 4, and 5), within the meaning of the statute, and that the local assessments for those sections of the improvement are void. The court of appeals, in the cases cited in the prevailing •opinion, has construed the meaning of the term “ works now in progress,” and, as we understand the cases, the term refers to works under construction, and so far advanced (April 30, 1873) that a change of system would involve complication and confusion. -Certainly, the work done in a single day on this important improvement involving the expenditure of several hundred thousand dollars was not so far advanced as to involve complication or confusion by directing it to be done by contract. It is quite apparent, we think, that commencing work on this section April 29, 1873, was a mere subterfuge, resorted to for the purpose of defeating this remedial statute. This is shown by the evidence in the record, and by the history of the construction of this improvement, as given in the prevailing opinion and in the cases referred to. It is urged that the property owners assessed were benefited by the work, and therefore a liberal construction should be indulged in to support the assessment. I think this is not the legal reason. Assessments are sometimes set aside because they are unequal or inequitable, but tax levies are never sustained because they are equitable; they must be legal. By sustaining this assessment we countenance the action of the department of public works in attempting to avoid the operation of this highly remedial statute, which, like all other such statutes, should be construed so as to thwart the mischief which the statute was intended to prevent; and this court ought not to point out a way by which this and ■other like statutes may be subverted. It is urged that the whole city should not bear the expense of this improvement which so largely benefited the owners of property on the Boulevard. A single individual is-not usually responsible for the improper action of a department of a municipality, but it is often just and legal to hold the entire body of the citizens responsible for such action. The judgment should be modified by increasing the amount of the recovery by $7,371.83, and, as modified, affirmed, with costs in favor of the plaintiffs and against the defendant.


author: Cullen, J.

text:
    Bernhard Rausch, Pl’ff, v. Katharina Rausch et al., Def’ts.

      {Supreme Gourt, Kings Special Term,

      Filed January 7, 1895.)

    Wills—Suspension of power op alienation.
    Where no trust is created, a direction in a will that property shall not be sold, does not suspend the power of alienation.
    Action to construe a will.
    Michael Rausch died, leaving the defendant Katharina Rausch, his widow, and one son, the plaintiff. The latter had two children, named in the testator’s will which was admitted to probate. When he died, the testator was seized of two pieces of real estate, one situated in Brooklyn, and the other in Clarenceville, L. L On May 19, 1893,—a date intermediate between the execution of the will and his death,—the decedent delivered to his wife a conveyance of the Clareneeville property. The deed, however, was not recorded until after his death. Plaintiff brought an action to have the will construed, and to determine the validity of its provisions. There was no personalty. Defendant Kramer was made sole executor.
    The provisions in controversy were as follows: “First. After my lawful debts are paid, I give, devise, and bequeath unto my beloved wife, Katharina Rausch, all my estate, both real and personal, of which I may die seized, to be her own as long as she remains my widow. Second. In the event of my wife remarrying, I will and ordain that all the rest, residue, and remainder of all my ■estate then remaining, both real and personal, shall be divided as follows, viz: One-half to my beloved wife, Katharina Rausch; and one-quarter to my dear son, Bernhard Rausch; and one-quarter to my dear grand-children, Bernhard Rausch and Virginia Rausch.” The third clause empowered the executor to sell the Clareneeville property, and “deposit the proceeds in a savings bank to the credit -of my said wife.” “Fourth. I will and ordain that all the rest, residue, and remainder of all my real estate shall not be sold, the income of which is to be drawn by my wife as long as she remains my widow; and, if she should remarry, then said income shall be divided as follows: One-half to my wife, Katharina Rausch; one-quarter to my son, Bernhard Rausch ; and one-quarter to my grand-children, Bernhard Rausch, and Virginia Rausch.”

      Delano C. Calvin, for pl’ff; Stephen B. Jacobs, for widow and executor.
   Cullen, J.

I regard Mellen v. Mellen, 139 N. Y. 210; 54 St. Rep. 670 ; Anderson v. Anderson, 112 N. Y. 104; 20 St, Rep. '344,-—-as conceding, it may be, rather than deciding, that an action of this character can be maintained under section 1866, Code. I find that the testator conveyed the Clareneeville property, in his lifetime, to his present widow, Katharina Rausch, and hence hold "that it is not necessary to determine or construe the provisions of the will regarding such property. I find the proper construction of said will to be as follows: By the first clause the testator gives the defendant an estate during her widowhood. If she dies his widow, then the plaintiff will take the estate as heir at law, as the remainder upon such estate is undisposed of by the will. That, hy the second clause of the will, on the remarriage of the widow the testator’s estate will vest in fee in the widow one-half, the plaintiff one-quarter, and the plaintiff’s children, Bernhard and Virginia," one-quarter. That the fourth clause of the will creates no suspension of the power of alienation. That on the remarriage of the widow no trusts are created, but the legal title vests in the four devisees, apart from the question of lives. 2 Jarm. Wills, 14; Oxley v. Lane, 35 N. Y. 340 ; Lovett v. Gillender, Id. 617. This clause is therefore void. Judgment in accordance with this -opinion, without costs to either party, as I. see no funds out of which the costs could be paid.


author: Daly, C. J.

text:
    Eward Burns, Resp’t, v. Augustin Walsh, App’lt.

      (New York Common Pleas, General Term,

      Filed January 5, 1895.)

    Pleading—Amendment.
    An amendment to conform the pleading to the proof can never be al- . lowed on the trial, when it changes substantially the claim, or defense, and the proof is relevant to the original issue.
    2. Evidence—Documentaby—Receipts.
    A receipt is always considered as prima facie evidence of all the facts- and statements therein contained and, in the absence of a sufficient explanation showing its incorrectness, becomes conclusive evidence against the party giving it.
    Appeal from a judgment of the city court, affirming a judgment in favor of plaintiff.

      Michael J. Scanlan, for app’lt; Hector M. Hitchings, for resp’t.
   Daly, C. J.

The plaintiff was permitted to recover $81 for moneys expended in hiring a boy to assist him in his work, at $18 per month, for 4J months, besides $64, balance of wages for the month of June, at the rate of $80 per month. No claim for the $81, moneys expended, was set up in the complaint, and it was a different cause of action from that sued on. The recovery for that sum, therefore, should not have been allowed. His action-was for wages, at a stipulated sum of $100 per month ; but in his testimony he explained his claim as follows: “I claim $80 for the month of June, and I claim repayment for the four months and a half that I paid this extra boy ; and that, according to the testimony, at $18, makes $81, making in all $161. But all I ask is $145, to be on the safe side.’’

A motion was made at the close of plaintiff’s case to dismiss all of the plaintiff’s complaint except as to wages for the month of June, on the ground that .the complaint contained no claim for moneys paid out, but was solely for services rendered. Thereupon plaintiff’s counsel moved that the pleadings be made to conform to the proof, which motion was granted, under objection to defendant’s counsel that it introduced a new cause of action • and he duly excepted.

The amendment thus allowed was objectionable, on the ground that it introduced a new cause of action, and should have been denied. Although testimony as to this claim was not objected to-when received, the plaintiff did not thereby acquiesce in the-proof of a new cause of action, because the whole of the evidence-was relevant to the issue whether the plaintiff was. or was not employed at the rate of $80 per month. An amendment to conform the pleading to the proof can never be allowed on the trial when the amendment changes substantially the claim or defense, and the proof is relevant to the original issue. Fortunato v. Mayor, 21 N. Y. Supp. 963.

But the $81 in question could not be recovered even if properly pleaded, because the plaintiff is estopped by his own receipts. It appears that, under his agreement with the defendant, he was .to receive $100 per month, and that this was punctually paid. The dispute on the trial was whether the plaintiff was to pay the wages of one boy or two boys to assist him ; he claiming that he was to pay but one boy, $20 per month, and to retain the balance, or $80, for his own services; the defendant claiming that he was to pay both boys, leaving but $60 per month as his wages. The proof shows that for two months after he was originally employed, which was about November 1, 1891, he paid $40 per month out of the $100 for two boys to assist him, and did not then nor at the trial make any claim for such payment, but that he gave a receipt in lull for the $100 each month. He then discharged one boy, but in February, 1892, was required by defendant to again employ two ; and it is for the payment to the second boy, after that period, that he recovered on the trial, notwithstanding the fact that he still continued each month to give a receipt in full for all demands, upon receiving the stipulated $100 per month. The plaintiff’s admission in making no claim for the payment to the second boy in November and December, and receipting in full for those months, and the re-employment of the boy when required by defendant, and receipting in full thereafter every month for the same sum, is of greater effect than simple corroboration of the defendant’s version of the agreement. It should.have been regarded as conclusive upon that point, as plaintiff is estopped by his receipts; the defendant having the right to rely upon them and the plaintiff’s acts. Belgian Glass Co. v. Pabst, 101 N. Y. 621.

Even if the plaintiff was not estopped by his receipts, they were conclusively against any further claim for the period for which they were given because they were wholly unexplained. “While a receipt is not conclusive evidence of all the facts and statements contained therein, and is open to explanation and contradiction by the party giving it, yet it is always considered as prima facie evidence of such facts, and, in the absence of a sufficient explanation showing its incorrectness, becomes conclusive evidence against the party giving it.” Riley v. Mayor, 96 N. Y. 331. In the case before us the plaintiff did not attempt to explain in any manner how he came to receipt in full for all claims and demands, each month, during his whole employment by the defendant. His receipts were “ in full for any and all claims and demands for services rendered as engineer and agent, or otherwise, in and about premises No. 3 & 5 East84th street.” His own evidence established the contract as set up in the defendant’s answer, viz. that his compensation was to be $100 per month, and not $80 per month, as he claimed in his complaint; the only dispute being whether he was to pay one or two boys out of that sum. He gave no reason why he receipted in full, and the facts do not explain it, but, on the contrary, established the correctness of the receipts, since he makes no claim for the first two months of the employment, during which he paid for two assistants.

The judgment should be reversed, and anew trial ordered, with costs of the appeal and the former trial to appellant to abide the event of the action.

All concur.


author: Bischoff, J.

text:
    Harlem Co-operative Building and Loan Association, Resp’t, v. Mercantile Trust Company, App’lt.

      (New York Common Pleas, General Term,

      Filed January 7, 1895.)

    1. Banks—Forgery—Notice.
    A delay in notifying a bank that the indorsement on a check was forged, '' is no defense to an action by the drawer, unless the bank was damaged by the delay.
    3. Same—Negligence.
    In an action by a loan association against a bank to recover the amount of a check which the latter paid on a forged indorsement, the negligence of the association in issuing such check on a forged application is no defense.
    Appeal from a judgment in favor of plaintiff.

      James L. Bishop, for app’lt; Abner C. Thomas, for resp’t.
   Bischoff, J.

The action was brought to recover $3,137.18, the amount represented by five checks drawn bye the plaintiff to the order of certain parties against its banking account with the defendant, and paid by the latter upon such account, it being claimed that the indorsements of the payees designated were forgeries. The checks were drawn at the instance of the plaintiff’s secretary, one Beardsley, for payment to members of the association of moneys which, according to the purport of withdrawal notices presented • by this individual to the plaintiff’s directors, were called for by these members ’upon their accounts with the plaintiff. As a matter of fact, the signatures affixed to the withdrawal notices were forged by Beardsley; and, having obtained the checks for delivery to the respective payees he forged their indorsements, and placed the checks to his individual credit in the Shoe & Leather Bank of this city, by which bank they were accepted, and to which, upon its indorsement, the amounts called for were paid by defendant, and charged against plaintiff’s account.

It was claimed, and the referee in fact found, that the plaintiff had delayed giving notice of these forgeries to the defendant, after their discovery, beyond a reasonable time ; but no proof of damage resulting from such failure was adduced on behalf of the defendant, and the referee therefore determined this point in favor of the plaintiff upon the authority of Third Nat Bank v. Merchant's Nat. Bank, 76 Hun, 475 ; 59 St. Rep. 359, where it was held that such a defense proceeds upon the theory of an estoppel, and that damage to the defendant must be shown in order that it may prevail. The ease cited was properly followed by the referee in determining this question as to the effect of the plaintiff’s delay upon the matters in suit. It is true that in other states the courts have held that a change of circumstances, and resulting damage to the bank’s interests, will be presumed where the depositor has unreasonably delayed giving 'notice to the bank of a discovered forgery, but such a rulehás not as yet been adopted by our courts, and, at all events, its application could hardly be well called for in this case. As a matter of fact, this defendant cannot be said to have been damaged in any way by the delay noted. The forged indorsements were guaranteed by the Shoe & Leather Bank, by the force of the latter’s indorsement, White v. Continental Nat. Bank, 64 N. Y., 820; Turnbull v. Bowyer, 40 N. Y. 456; and it is against the instruction that the defendant’s remedy lies, not against the forger, whose escape the plaintiff’s failure to give prompt notice of the forgeries may have possibly facilitated. The referee has found that the Shoe & Leather Bank is “a banking corporation of good credit, and repute;’’ and it does not appear that the plaintiff’s delay in giving notice of these forgeries has injured that credit and repute, or affected the defendant’s recourse as against such bank in any way.

It is further claimed that the plaintiff was negligent in issuing checks payable to its members upon forged applications, the means find no force in the contention. As between these parties, the circumstances leading to the issuing of the checks cannot affect the plaintiff’s right that the moneys held by the defendant-upon its account should be paid out only upon its orders, and to-the payees named therein or to their order. This is not a case where the doctrine of contributory negligence finds any application in the aspect considered; and it certainly cannot be said that the defendant was at all misled or injured by the plaintiff’s having issued these checks under the circumstances noted. Whatever the methods leading to their preparation, the outward form of these checks, their validity, and the duties of defendant with respect to them were alike unchanged. Hor are we to hold that the plaintiff’s failure to earlier discover the fact that the indorsementsof the payees’ names were forged precluded the opening of the accounts periodically stated. It is the duty of the bank to ascertain whether or not the signature of the depositor or the indorsement of the designated payee upon a check is genuine, and the depositor has the right to assume that the question has been determined by the bank when the check is returned to him as evidence of a payment made by bis direction. Shipman v. Bank of State of N. Y., 126 N. Y. 328; 37 St. Rep. 376; Wachsman v. Columbia Bank, 8 Misc. Rep. 280; 59 St. Rep. 232; Frank v. Chemical Nat. Bank, 84 N. Y. 209; Weisser v. Denison, 10 N. Y. 68. In this case the plaintiff's treasurer examined the return checks as received from the defendant, with regard to their dates and amounts; and while the signatures of the payees, as indorsed thereon, might have been verified by reference to the records of „ the association, such verification would appear to be an act in excess of the duty owing from.the plaintiff to the defendant. Cases supra. True, in Frank v. Chemical Nat. Bank, the court say that a depositor might be held to a duty of making some examination of his returned checks for the purpose of detecting forgeries of his own signature ; yet in that case it was further held that, in order to preclude a recovery by reason of a failure to make such an examination, an injury resulting to the bank would be a necessary element in the consideration. The cases do not go to the length of holding that an examination of the indorsements of payees should thus be made; and, moreover, as shown above, no injury' to the defendant resulted in this case.

It appears that the issues presented were correctly determined by the learned referee, and the judgment is therefore affirmed, with costs.

All concur.


author: Pryor, J.

text:
    Hospital Supply Company, Resp’t, v. John O’Neill, App’lt.

      (New York Common Pleas, General Term,

      Filed January 7, 1895.)

    1. Appeal—Weight of evidence.
    After refusal of the trial court to set aside a verdict, it will not be disturbed on appeal because against the weight of evidence, unless so con-' trary to the preponderant proof as to startle by its absurdity, or to suggest suspicion of evil influence.
    3. Sale—Manufacture article—Acceptance.
    Where, by contract, acceptance of article to be manufactured and delivered in the future is subject to approval by the vendee, if the article be in conformity to the contract as to material and workmanship, and the vendee retains und uses it, though complaining of its operation in a single particular, his verbal disapproval and formal refusal to accept is no answer to an action for the price. Acts of approval and acceptance are of more effect than words of disapproval and rejection.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      James Dunne, for app’lt; Charles C. Nadal, for resp’t
   Pryor, J.

This action is for the purchase price of a laundry plant, manufactured and sold to the defendant under an agreement which stipulated: “ All to be erected in a first-class, workmanlike manner, and the acceptance of the plant to be subject to the entire approval of George Keister, architect, and Mr. O’Neill, proprietor.” The defense is that the work was neither in conformity to the contract nor approved by O’Neill. The evidence on the trial was addressed to this point.

The court denied an application for direction of a verdict in favor of the plaintiff, as well as a motion for a nonsuit, and upon a submission of the issue to the jury they returned a verdict for the plaintiff. In arriving at the verdict the jury necessarily passed upon the credibility of opposing witnesses, and upon the preponderance of conflicting evidence. A motion by the defendant to set aside the verdict was denied by the trial judge. Whether, upon the evidence, the verdict may be for the plaintiff, is a question of law for the court; whether, upon the evidence,, the verdict should be for the plaintiff, is a question of fact for the jury. Still the decision of the question of fact by the jury is subject to review by the court on a motion for a new trial, but the verdict will not be set aside except upon a conviction of error in the conclusion of the jury. Nelson v. Easton & A. R. R. Co., 58 St. Rep. 384; 28 N. Y. Supp. 50, 51. A verdict for the plaintiff determines in his favor every fact of which there is evidence (Sutter v. Vanderveer, 122 N. Y. 652, 654; 34 St. Rep. 211), and, since there was proof of performance by plaintiff and approval by defendant, we are

reduced to the inquiry whether the fact as found be against the weight of evidence. Bagley v. Bowe, 105 N. Y. 171; 6 St. Rep. 842. It is not enough for a solution of the question in favor of the appellant that our conclusion upon the evidence be contrary to that of the jury. We have no authority to substitute our judgment for the judgment of the jury, and to say that proof persuasive with us should have been convincing to them. If that were so, the exclusive jurisdiction of the jury over the facts would be illusory, and their verdict, instead of a finality, would be provisional on the approval of the court. In the legal sense, a verdict against the weight of evidence is a verdict so contrary to the preponderant proof as to startle by its absurdity, or to suggest the suspicion of even influence. Unless the verdict be thus infirm in its origin, betraying either no exercise or a perverse exercise of the judgment of the jury, it is a finality beyond the power of the appellate tribunal to disturb. Morss v. Sherrill, 63 Barb. 21; Fleming v. Smith, 44 Barb. 554; Beckwith v. N. Y. C. R. R. Co., 64 Barb. 299; Cheney v. N. Y. C R. R. Co., 16 Hun, 415; Dollner v. Lintz, 9 Daly, 17. Independently of the stipulation for approval, the contract to manufacture and deliver the article at a future day involved an assurance of good workmanship and of the fitness of the plant for its purpose. Manufacturing Co. v. Allen, 53 N. Y. 515, 519. But, conceding to the stipulation a distinct and inde pendent obligation, the evidence is ample to authorize the inference of its fulfillment. The uncontradicted proof shows that, ■after the plant was completed and put in operation, the defendant suggested alterations, which, being made by the plaintiff, the defendant resumed and continued work with the machine. Hence the implication that then the defendant was content with the plant. Again, the uncontroverted proof is that, in reply to an inquiry by the plaintiff, the defendant’s representative, in running the machine, stated that it was satisfactory. Again, upon application for payment for the plant, the defendant promises to settle in ■a short time; said, “Call again, and I will pay the bill,” making at the time no other objection to the machine than that it cost more to launder the goods than formerly by hand. Here, beyond question, is solid ground for the inference of an approval of the machine by the defendant; and, although he gave proof of objections to its operation, we cannot say, on an estimate of the conflicting evidence, that the verdict is so unsupported as to authorize its reversal. On the contrary, we conceive it to be in accordance rather with the of

Conceding, however, that the defendant did urge objections to the machine, nevertheless he continued its use from November 1st to the 15th of January, and retention and use after discovery of defects imposes a liability to pay for the article. Logan v. Berkshire Apartment House, 3 Misc. Rep. 296, 297; 52 St. Rep. 132. Words of disapproval yield in effect to acts of approval. Furthermore, the evidence warrants the inference of waiver of personal approval by the defendant. Upon inquiry by plaintiff’s manager, November 23d, “ if the plant was satisfactory, and everything all right,” the defendant said, “There is Mr. Keister, he will approve or accept.” or something to that effect. Again, on the 28th or 29th of November, the architect said to the defendant: “I have-been called upon for. a certificate. I am going to examine the machinery. Do you know of any reason why it is not all right?” To which the defendant answered, “You had better see Mrs. O’Neill.” The architect saw Mrs. O’Neill, and “ she made no» complaint, excepting the difficulty the girls had in running the engine." Thereupon the architect issued the certificate. If, however, the work fulfilled the requisitions of the contract, refusal to accept it would be no answer to the action. Doll v. Noble, 116 N. Y. 230; 26 St. Rep. 629; Boiler Co. v. Garden, 101 N. Y. 387. That the work was well done, in accordance with the contract, is the clear conclusion from the evidence. Indeed, the only defect in the machine of whicli the defendant complained is that it wears-the linen; but upon the uncontradicted evidence all machinery wears linen worse than washing by hand, and no proof was given that this machine was more destructive than others. In any event, actual acceptance prevails against a verbal rejection. We are not unmindful of-the evidence adduced by defendant in answer to the case against him, nor do we deny the force of that evidence. We are passing upon the comparative cogency of the competing proofs, and our conclusion is that the preponderance, if any, in favor of the defendant, is not such as authorizes us, in accordance with legal principle, to disturb the verdict of the jury.

The appellant impeaches the judgment for error in denying requests to charge, but we discover none. Clearly, mere refusal by the defendant to approve the plant is ineffectual to absolve him from payment.' The fifth "request'is vicious, in assuming facts which the jury were to determine. So as to the sevénth request, the inference to be drawn from the retention and úse of the apparatus by the defendant, if not deduced by the law in favor of the plaintiff, was at least a question for the jury. The eighth request was inadmissible, because it proceeded on a partial view of the proof,—omitting reference to the effect of an acceptance of the-work,—and because, however consonant with adjudications in-other states, it is not the law in this jurisdiction. Boiler Go. v. Garden, 101 N. Y. 388. Another and a conclusive answer to the request is that the proposition it embodies had already been put to the jury in the charge of the learned judge “ that the case turns upon the question whether or not the defendant has unreasonably and in bad faith withheld his approval of the work.” The ninth-request postulates proof of an unusual removal of lint, whereas no evidence authorizes the inference that the machine, in this effect, differed from others. Moreover, whether defendant’s refusal to-approve was reasonable was an inference to be drawn from all the facts, not from a single circumstance. An error in the charge is also alleged, but it is in the very language of the court of appeals. At all events, in connection with the portion of the charge quoted above, it states the rule of law correctly. Judgment affirmed, with costs.

All concur..


text:
    Harris Lyons, Resp’t, v. Julius Miller, App’lt.

      (New York Common Pleas, General Term,

      Filed January 7, 1895,)

    1. Pleading—Variance.
    An imm iterial variance between the pleading and the proof should be disregarded, and it is error to direct a verdict because of such variance.
    2. Same—Amendment on trial.
    In case of immaterial variance between the pleading and the proof, it is the duty of the court either to allow an immediate amendment, or else to direct a finding of the fact according to the evidence.
    3. - Same—Allegation of time.
    Unless a constituent of the cause of action or defense, a statement of time is not an essential allegation, and need not be proved as laid ; and unless the variance of time in the pleading and proof be shown to have misled the adverse party, to his prejudice, it should be disregarded.
    Appeal from a judgment of the city court affirming a judgment in favor of plaintiff.

      A. H. Berrick, for app’lt; Herman Joseph, for resp’t.
   Pryor, J.

In answer to an action for rent for June, 1894, the appellant alleged a surrender about ” the month of September,. 1893, and tendered evidence of a surrender in August, 1893 ; but the court rejected the offer, and directed a verdict in favor of the plaintiff," for want of proof of the defense pleaded. The judgment has been affirmed by the general term of the court below on the ground of variance between the pi'oof tendered and the defense pleaded, and we are to determine whether the ruling may be supported upon any principle in the law of New York.

The maxim invoked by the court below, that judgment must be “ secundum allegata et probata,” applies only to the substance, not to the circumstances, of a claim or defense. So that, upon principle, if there be a substantial identity between the plea and the proof, a circumstantial variation is of no consequence. Place v. Minster, 65 N. Y. 89, 99. By the Code (§ 539), a defense offered is a variance from the defense pleaded only upon proof, to the satisfaction of the court, that it has actually misled the plaintiff, to his prejudice. If no such variance be so shown, the court may allow an immediate amendment, or direct the fact to be found according to the evidence. Code, § 540. Here, between the surrender pleaded and the surrender tendered in proof, there was no single discrepancy, except in the predicate of time. Under the common-law system of pleading, while indispensable to state the time of occurrence of every material and traversable fact, it is unnecessary to prove the time as alleged, unless a constituent of the cause of action or defense. 1 Chit. PI. 259. So, under the Code, if the time a fact happened be material to the cause of action or to the defense, it must be specified and proved. People v. Ryder, 12 N. Y. 433 ; Patterson v. Baker, 6 Thomp. & C. 76; Id., 3 Hun, 398. But, when the only materialty of the statement of time is to show the order in which events occurred, it suffices to aver that the one event preceded the other, without designating the date of either. Brown v. Harmon, 21 Barb. 508 ; Kellogg v. Baker, 15 Abb. Pr. 286, 289; Martin v. Kanouse, 2 Abb. Pr. 330. Hence, as, by the answer and the tender of proof, the surrender antedated the accrual of the rent, the day or month of the surrender was of no moment to its efficacy as a defense. And the discrepancy in the time of .the surrender as stated and offered to be shown, in the absence of evidence of prejudicial surprise, afforded no justification for rejection of the proof of surrender. Code, § 540; Craig v. Ward, 36 Barb. 377; Catlin v. Gunter, 11 N. Y. 368; Place Minster, 65 N. Y. 89, 104; Hauck v. Craighead, 4 Hun, 561.

Since the variance between the defense pleaded and the defense tendered in proof was immaterial, no amendment of the answer was necessary (Code, § 539); and the court erred in the exclusion of the evidence. In any event, the discretion of the court was confined to the alternative of an immediate amendment, or a finding of the fact according to the evidence. One or the other the court was bound to allow, and by refusing both it committed manifest error. Again, at every stage of an action “the court must disregard an error or defect, in the pleadings or proceedings, which does not affect the substantial rights of the adverse party.” Code, § 723; Weil v. Martin, 24 Hun, 645, 646. This beneficent statute of jeofails, designed expressly to relax the rigor of the common law, and prevent a defeat of justice by mere informalities in pleading or procedure, the court below has nullified by a ruling for which no precedent is to be found even in the arbitrary and illiberal' system which our Code supersedes.

The respondent essays to uphold the judgment by objections to the sufficiency of the facts shown to constitute a surrender, to which attempt a two-fold reply is obvious : First, that the appellant was checked in the production of his proof; and, secondly, that the points now urged were not presented or determined in the court below. Our function is only to review errors in the actual adjudication of the city court. We may add, however, that the statute of frauds is of no avail against an accepted surrender. Kelly v. Noxon, 64 Hun, 282; 46 St. Rep. 87 ; Hurley v. Behring, 43 St. Rep. 240; 17 N. Y. Supp. 7; Vandelcar v. Reeves, 40 Hun, 430. Judgment reversed, and new trial ordered ; costs to abide the event.

All concur.


author: Bookstaver, J.

text:
    Florian Rohe et al., App’lts, v. Third Avenue R. R. Company, Resp’t.

      (New York Common Pleas, General Term,

      Filed January 7, 1895.)

    Negligence—Contributory.
    One who, knowing that a street car, about a block distant is approaching at the rate of ten miles an hour, drives upon the track without hurry- ■ ing or looking for the car, is guilty of contributory negligence.
    Appeal from a judgment in favor of the defendant, rendered by the justice without a jury.

      Herbert C. Smith, for app’lts; John Vernon Bouvier, Jr., for resp’t.
   Bookstaver, J.

Plaintiffs sued to recover damages for an injury to one of their delivery wagons, due to a collision with one of the defendant’s cable cars. The justice decided that the plaintiffs’ driver was guilty of contributory negligence, and that they, therefore, could not recover. The whole case, in this aspect, rests upon the testimony of the driver of the wagon. He turned his horses from in front of a store on the easterly side of Third avenue, just north of Twelfth street, and drove directly across the avenue in a westerly direction. Before he.“struck” the uptown —that is, the easterly—track he saw the car at a stop at Thirteenth street, and when the car started his horses were upon the uptown track. His horses started three or four seconds before the car started. He further testified that he saw the car coming at the rate of ten miles an hour. ’ He was asked by the court; “ Q. After you crossed the uptown track , did you again look before crossing the downtown track to see how far the car was away from you ? A. Mo, sir.” The wagon had a covered top, and a wire screen extended along each side of the driver’s seat. After he started across he did not turn to look at the car, but proceeded, walking his horses. The car, on the downtown track, struck the right hind wheel of the wagon, knocking it over. The driver was clearly negligent if, after seeing a car upon the same block approaching at the rate of ten miles an hour or a much less rate of speed, he deliberately drove across the track without looking or hurrying his horses, and the decision of the justice mnst therefore stand. Judgment affirmed, with costs.


text:
    Mary G. Shaw, Resp’t, v. Richard Mansfield, App’lt.

      (New York Common Pleas, General Term,

      Filed January 7, 1895.)

    Contract—Proof.
    The evidence was held insufficient to sustain a finding that the defendant had entered into a contract with the plaintiff.
    Appeal from a judgment in favor of plaintiff, rendered by the justice without a jury.

      A. W. Gleason, for app’lt; Hirch & Rasquin, for resp’t.
   Bookstaver, J.

This is an action for breach of a contract of employment. After two conversations between the parties, a-written contract was submitted by defendant’s manager to plaintiff, which was recalled by him before it had been signed by either party. Plaintiff’s claim rests upon the ground that defendant employed her at their second interview', and the justice found in her favor. In this we think he erred. The weight of the evidence seems to be in favor of the contention that at these interviews negotiations for a contract only were had; any agreement arrived at was to be reduced to writing. Plaintiff testified that at defendant’s request she called upon him about the middle of July, 1884, at Mewport, and had some conversation with him about entering his theatrical company, but no terms were engaged upon. In August she again called upon him, at his request, at the Herald Square Tkeatr'e. At this interview, defendant proposed to give her $100 a week for New York, and $115 per week for the road, to play a part in “Prince Karl.” Whether or not she accepted these terms at that time is disputed; Defendant asked her to come and try the part. She did so, and rehearsed that day. The next morning she called at the theater, and was told that there was no rehearsal that day. Mr. Slocum, defendant’s manager, handed her the written contracts, saying: “Here are the contracts. I would like to have them fixed to-day.” From these it appeared that she was to engage for a period of 30 weeks at $100 per week. There was no stipulation in regard to the road. She explained the proposition defendant had made, and Mr. Slocum drew up new contracts embodying this change, and sent them by mail to her the same day (a Wednesday), at the address she had given him. For some unexplained reason, plaintiff did not receive the contracts until Friday, and Monday she received a letter from Mr. Slocum, stating : “As you have not signed the contracts, we conclude you object to signing them. Therefore, .we have secured another actress for your part. We regret this very much, as we hoped to have you with us. We may have the pleasure some other time. Will you kindly send- back the part you have in Prince Karl ?”

Defendant testified that plaintiff did not accept the propositions made by him at the interview in August, but said she would consider them. He asked her to rehearse, that he might judge of her capacity to fill the part. A reference to the written contract shows that many of the conditions therein were not discussed by the parties, such as the provision for discharge for incompetency, etc., and for cancellation of the contract by either party on two weeks’ notice, at any time. Plaintiff’s assenting to the defendant’s proposition to submit a written contract, thereafter to be executed, is evidence tending to show that the parties had only arranged the terms which it was understood by them were to be inserted in the regular written contract, which is usual in such cases. We therefore think that the weight of the evidence is with the defendant’s contention, that no contract ever existed between the parties. Judgment reversed, and a new trial ordered, with costs to appellant to abide the event.


author: Bookstaver,

text:
    Mary E. Downs, Resp’t, v. Herbert J. Taylor, App’lt.

      (New York Common Pleas, General Term,

      Filed January 7, 1895.)

    Evidence—Competency.
    The exclusion of evidence, which would probably have thrown light upon an obscure and conflicting state of facts, is error.
    Appeal from a judgment in.favor of plaintiff, rendered by the justice without a jury.

      Robert L. Luce, for app’lt; R. H. Smith, for resp’t.
   Bookstaver,

This action was brought to recover certain sums of money, which plaintiff testified that she had paid out to or for defendant on certain vouchers, which she produced at the trial. • Defendant endeavored to prove that the money had been lent or paid to him by Louise & Co., in whose employ the plaintiff then was. Charlotte E. Taylor, his wife, was Louise & Co., of Hew York, and he was vice' president of Louise & Co. of Chicago. He produced certain checks, which he claimed represented the amounts of the vouchers, and by which they had been paid. He sought to show by the cashier of Louise & Co. of Hew York that plaintiff, when she left their employ, had taken with her certain vouchers which had been given by defendant to Louise & Co. for cash. The question asked was excluded, and, inasmuch as the. testimony is very conflicting, and the line of inquiry sought to be introduced by this excluded question would probably have thrown light upon an obscure and conflicting state of facts, we think that the justice erred in excluding the evidence. The judgment should therefore be reversed, and a new trial ordered, with costs to appellant to abide the event.


text:
    Price Printing House, Resp’t, v. Jewelers’ Review Publishing Company, App’lt.

      (New York Common Pleas, General Term,

      Filed January 7, 1895.)

    Pleadings—Affirmative defenses.
    Excuses for performance and payment are affirmative defenses, which cannot be proved under a general denial..
    Appeal from a judgment in favor of plaintiff, rendered by the justice without a jury.

      James H. Wood, for app’lt ; Philo. P. Safford, for resp’t.
   Bookstaver, J.

This is an action for damages for breach of contract. Plaintiff agreed to do the presswork, binding, and mailing of the Jewelers’ Review for a period of one year at certain prices named in the contract, and to allow defendant a credit of $700 on certain presses sold by defendant to plaintiff, payment for the work to be taken out of this $700 credit as long as it lasted, and defendant contracted to give the presswork and binding to plaintiff for the same period, at prices named. The agreement was carried out by both parties until within a few weeks of the end of the year, when defendant neglected and refused to give the work to plaintiff, and plaintiff therefore sues to recover damages for defendant’s breach. The pleadings were oral; defendant’s answer a general denial. The justice gave judgment for plaintiff, and defendant appeals. It claims that there is no evidence that it had not paid the damages, or that the credit of $700 had been exhausted. These points were not raised upon the trial. The motion to dismiss at the close of plaintiff’s case was based solely upon the ground that defendant was not bound to give plaintiff the papers or forms “at any hour during the period of time.” It is therefore not proper to raise these questions for the first time upon appeal, especially when the case was apparently tried upon the assumption that the credit had been exhausted, and that fact is clear from a consideration of the monthly expenses of publication. If the damages-had been paid, it was an affirmative defense which should have been alleged and proved, and was not admissible under a general denial. Lent v. N. Y. & Mass. Railroad Co., 130 N. Y. 504; 42 St. Rep. 592, and cases cited. The amount of damages was sufficiently proved, and there is evidence that plaintiff was ready and willing to perform the contract on its part. The question of the mutuality of the contract is not worthy of consideration. A reference to it shows that its terms are clear, and the consideration moving between the parties good and valid. Appellant also contends that the respondent did not mail the papers at or before the time agreed upon in the contract, and also that it required the appellant to-complete its forms by Saturday morning of each week, which, if done, would have excluded late news, important to be inserted in each issue. Both of these were also affirmative defenses, being excuses for nonperformance, evidence of which could not be given under a general denial. Abb. Tr. Brief PI. § 822, and cases cited. This judgment should therefore be affirmed, with costs.


author: Bookstayer, J.

text:
    Lena Millie, App’lt, v. Manhattan Railway Company, Resp’t.

      (New York Common Pleas, General Term,

      Filed January 7, 1895.)

    1. NEgligence—Proof.
    The mere fact that the rubber covering on the stairs of the defendant’s, station was out of repair and caused plaintiff to fall, without any proof that, such condition had existed for a sufficient length of time to impute notice, is not sufficient to charge defendant with negligence.
    2. Evidence—Opinion.
    Matters of common knowledge ate never the subject or expert evidence.
    3. Same.
    Expert testimony is inadmissible in relation to the safety or danger of a, structure.
    Motion for a new trial on exceptions, ordered to be heard at. general term in the first instance.

      Roger Foster for pl’ff; Edward B. Thomas, for def’t.
   Bookstayer, J.

This action was brought to recover damages for personal injuries alleged to have been caused by the negligence-of the defendant, whereby plaintiff was caused to fall down the stairs of the station at Fifty-Ninth street and Ninth avenue receiving, as is claimed, permanent injury. The action was twice tried before the same justice, who on the first trial submitted certain questions of fact to the jury, who were unable to agree upon a verdict. Upon the second trial the justice dismissed the complaint, directing the exceptions to be heard at general term in the first instance. The learned judge who tried the case, on dismissing the complaint, delivered an exhaustive opinion on the main questions involved in the action, and we do not think it is necessary to add anything to what he has there so well said upon those points. But upon this motion the plaintiff has argued that the-learned judge overlooked the fact that two nails, claimed to be from the stairway, were offered in evidence, an’d that the condition of these nails was such as to warrant the court and jury in finding that the rubber on the stairway had been in a dangerous condition for a sufficient length of time to impute notice thereof to the defendant. The first difficulty with this contention is that there is absolutely no proof that these two nails were of the size and character of those generally employed in fastening the rubber to the stairway. The witness producing these nails testified that he found one of them on the step below the loose rubber, the day after the accident, and the other he found standing upright, and sticking in the rubber at the loose place. The stairways of the elevated railroad are so frequently swept in order to keep them passably clean, that it seems almost impossible that a nail such as this could have lain upon those steps undisturbed from 12 o’clock noon on one day to 7 or 8 o’clock .on the morning of the-following day; and the constant use of the stairway by passengers ascending and descending almost precludes the possibility of the nail sticking up in the rubber, as claimed by the witness, to have remained there for any length of time without being knocked out. On the argument, plaintiff’s counsel claimed that these nails were worn on the top, and were very rusty. But there is no proof in the case as presented as to how rusty these nails were at the time they were secured by the witness. Nor is it shown by the evidence that rusty nails are more likely to come out of wood than those which are not. Nor is there any evidence that nails, if driven in green wood, would not rust while securely in their place. Nor it there proof that nails securely driven home, even in dry wood, where such wood is exposed to the-elements, will not rust while in that position. And we are-therefore of opinion that this circumstance add nothing to the facts from which the jury could by fair inference conclude that-the rubber had been out of repair for a sufficient length of time to impute notice to the defendant. This case is not at all analogous to Van Tassel v. N. Y, L. M & W. Railroad Co., 1 Misc. Rep. 299 ; 48 St. Rep. 767, where the step causing the injury was fully identified, and the fracture showed by the coloring of the edges, that it had been in a dangerous condition for a considerable period of time. Nor is it like Jones v. N. Y. C. Railroad Co., 28 Hun, 364; affirmed 92 N. Y. 628, where it was held that the appearance of the iron rung of a ladder used in connection with a freight car, and from which plaintiff’s intestate had failed, -bent, and dented, with the broken ends partly bright, as though recent,, and partly rusted as though old, justified the jury in assuming-that the defect had existed for a sufficient length of time to have-enabled the defendant to discover and repair it had it exercised, reasonable diligence to ascertain the condition of the ladder. The facts in this case are much more analogous to Degraff v. N. Y. C. Railroad Go., 76 N. Y. 128, where it was held the master may not be held responsible for a mere defect in machinery without proof of negligence on his part, and that his negligence will never be presumed ; and to Henkel v. Murr, 31 Hun, 28; McNally v. City of Cohoes, 127 N. Y. 350; 39 St. Rep. 578; Turner v. City of Newburgh, 109 N. Y. 301; 15 St. Rep. 93; Kunz v. City of Troy, 104 N. Y.344; 5 St. Rep. 642.

Besides all that has been said by the learned justice who tried the case, in relation to the rubber, we fail to see how that could have produced the injury complained of, even if it were as bad at the time the plaintiff slipped and fell as it was on the following day, or when the rubber was examined. From the testimony in the case it would appear that the edge of the rubber which was loose was against the iron guard on the front edge of the tread. This,, if slightly elevated, might cause a person to slip going up the stairs, if his toe caught in it ; but it is impossible to conceive how any one going down could catch the heel of the shoe in such a place, as the weight of the foot pressing upon the rubber would naturally press it closely against the tread. But if the loose edge of the rubber was furthest from °the edge of the tread, and near the riser, then it is equally impossible to believe that the foot could have been caught in it, as the overhang of the tread above would bring the heel of the shoe beyond the edge of the rubber. The plaintiff examined one Ross, a carpenter, as a witness, and asked him certain questions as an expert, with the object of showing (1) a safe way of nailing down rubber treads, (2) whether.rusty nails get loose, (3) whether a heel could loose a nail firmly driven, (4) whether a loose nail could be detected by inspection, (5) whether a nail which could be pulled out by the heel of a boot or one’s fingers must have been loose for any period before, and (6) whether the heads of the nails show that they had been exposed and trodden on. As to some of these questions, they were excluded on the express ground that there was no evidence in the case on which to base the questions propounded : others of them were matters of common knowledge, which is never the subject of expert evidence (Schaffer v. Evans, 33 Cal. 32); and the remainder of them related to the safety or danger of a structure, and in cases of that character expert testimony is inadmissible. Hart v. Hudson River Bridge Co., 84 N. Y. 56; McDonald v. State, 127 N. Y. 18 : 37 St. Rep. 248; Harley v. Buffalo Car Manufacturing Go., 142 N. Y. 37; 58 St. Rep. 437; Swartout v. N. Y. C. Railroad Co., 7 Hun, 571. As before said, there was no evidence that the nails were rusty, and of the other matters the jury could judge as well as the witness. We do not see how it is possible that a carpenter from his peculiar knowledge, could tell whether a heel striking a nail would pull it out or not; nor would bis peculiar knowledge enable him to say whether others, not carpenters, could tell whether a nail was loose or not by mere inspection. We therefore think that the complaint was properly dismissed, and ■the objections should be overruled, and the defendant have judgment of dismissal, with costs.

All concur.