text:
    Bernard Lowenstein, Resp’t, v. Lena Salinger, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    1. Partnership—Husband and wipe.
    A married woman is not empowered, even by the enabling act of 1884, to enter into a copartnership with her husband, and contracts made in the conduct of such a partnership business are not enforceable against her.
    2. Same.
    In the absence of proof that the law of Arkansas is different from that of this state on that question, it will be held that married women in that state are subject to the same disability, and that a contract made in a business conducted by a partnership consisting of a husband and wife cannot be enforced against her.
    Appeal by the defendant, Lena Salinger, from an order denying her motion to vacate a warrant of attachment, and also denying her motion to vacate and set aside a levy thereunder.
    The attachment affidavit and the complaint allege that L. Salinger & Go. was composed of Louis Salinger and Lena Salinger, the appellant; that they and the firm were residents of Brinkley, Arkansas, and did business there; that Louis Salinger died in November, 1890; that Lena is the surviving partner, and that Alexander Salinger is the administrator of said Louis Salinger, deceased.

      John M. Bowers and L. O. Heed, for app’lt; Maurice Uniermyer, for resp’t.
   Barrett, J.

The motion to vacate was founded upon the fact that the defendant, Lena Salinger, was a married woman, and that, as such, she was not authorized, by law to enter into a copartnership with her husband for business purposes. The debt sued on was contracted in Arkansas by the firm of L. Salinger & Go., composed of this defendant and her husband, Louis Salinger. The latter is dead and the action is brought against the wife as surviving partner. She sets up coverture and claims non-liability under the laws of Arkansas. The plaintiff does not deny the marriage, nor does he point out any law of the state of Arkansas validating such a contract. On the contrary, he states that a case which has been brought against Mrs. Salinger in that state, where the question under consideration arose, was decided in her favor. There is no' disputed fact in the case, and the question is solely one of law.

It has been expressly decided in this state that a married-woman is not empowered, even by the enabling act of 1884 (chap. 381), to enter into a copartnership with her husband, Kaufman v. Schoeffel, 37 Hun, 140, nor indeed to make any binding contract with him. Hendricks v. Isaacs, 117 N. Y., 411; 27 St. Rep., 449. In Fairlee v. Bloomingdale, 67 How. Pr., 292, the authorities were carefully reviewed and the conclusion arrived at that contracts made in the conduct of such a partnership business were not enforceable against the wife. See, also, Lord v. Parker, 3 Allen, 127; Chambovet v. Cagney, 35 N. Y. Supr. Ct., 487; Bertles v. Nunan, 92 N. Y., 152; Coleman v. Burr, 93 id., 17. In the absence of any evidence to the contrary, the presumption is that the common law of this state is the common law of Arkansas. Brick v. Campbell, 122 N. Y., 345; 33 St. Rep., 520. The common law' would, of course, be decisive against the wife’s liability. All that the plaintiff shows in avoidance of the common law disability is the statement that: The statutes of the state of Arkansas enable a married woman to acquire and own separate property from her husband, and carry on business on her sole and separate account, and is almost identical with our own married woman’s act of 1884.”

In the absence of any judicial construction of this statute by the courts of Arkansas, the rules laid down by our own courts-must govern. The plaintiff says that he is informed by a Tennessee lawyer of eminence, who practices in the courts of Arkansas,, that the decisions in the latter state upon the point in question are conflicting, but that there has been no direct decision by the highest court of the state One of the plaintiff’s attorneys also says-that he has personally made an examination of the Arkansas law and has found a variety of conflicting decisions upon the point. The only decision proved as matter of fact is the one already referred to, where it was actually held that the present defendant was not liable upon a partnership contract made by the firm in question. The plaintiff was bound to aver and prove that the rule in Arkansas was different from the rule in this state. Brick v. Campbell, supra. In this he has entirely failed. In fact, the only evidence which he has offered on the subject tends to prove that the rule there is precisely the same as it is here. Plainly, then, the plaintiff makes out no case against this defendant.

Ordinarily, the court will not upon motion try questions regarding the cause of action which should properly be left for determination upon the trial. Where, however, the facts are undisputed and the legal conclusion certain, it would be oppressive to hold an attachment which is clearly without foundation.

It will not be necessary, therefore, to consider the other questions presented by this appeal.

The order appealed from should be reversed, with costs and the usual disbursements, and the attachment vacated.

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


source: Caselaw Access Project

author:
Barrett, J.
      Van Brunt, P. J.

license: Public Domain

text:
    Walter L. Kane et al., Resp’ts, v. The Manhattan Railway Co. and The Metropolitan Railway Co., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    1. Railroad—Elevated—Damages.
    In equitable actions against an elevated railroad company, damages for loss of rental must be allowed down to the time of trial, and interest on the sum awarded for fee value until the same is paid.
    2. Same.
    Where two connecting lots are held by one owner, one fronting on the elevated railroad and the other on a side street, it is not error, in estimating the fee value of the property taken, to decline to consider the advantage derived by the rear of the plaintiffs’ avenue lot from its connection with the other lot upon the side street.

      S. Same.
    Where referees view the premises by stipulation, their report should be treated very much as that of commissioners of appraisal, and should not be disturbed unless the award is grossly inadequate or unless the referees erred in matter of principle.
    Appeal from a judgment in favor of the plaintiffs rendered upon the report of a referee.

      Stanley W. Dexter, for resp’ts; Julien T. Davies and Herbert Barry, for app’lts.
   Barrett, J.

This is one of the actions against these defendants commonly known as “land damage actions.” It presents but little that is new. The defendants claim that the referees erred in their award as to the injury to the fee value of the plaintiffs’ easements. An examination of the record, however, shows that the report on this head was fully supported by the evidence. It also appears that a stipulation was entered into between the parties that the referees might view the property and observe the construction and operation of the elevated railway in front of the plaintiffs' premises and the effect thereof. It was further stipulated that the experience of the referees, together with such observation and the information thus obtained, should be taken as evidence in the case. The record also shows that the referees availed themselves of the privileges conferred by this stipulation and actually viewed the property and observed the construction and operation of the railway in front of the plaintiffs’ premises and its effects upon them. The report of the referees under these circumstances should be treated very much as that of commissioners of appraisal, and should not be disturbed unless the award is grossly excessive or unless the referees erred in matter of principle. The only error on the latter head claimed by the defendants is this: That in estimating the fee value of the property taken the referees declined to consider the advantage derived by the rear of the plaintiffs’ lot from its connection with other premises, belonging to the plaintiffs, upon the side street. The request which brings up this question reads as follows:

Tenth. In determining the value of plaintiffs’ easements or their rights, taken or interfered with by the perpetual maintenance and operation of the defendants’ elevated railway, including consequential damages to the plaintiffs from the talcing of the1 same, the premises No. 64 Church street should be regarded as separate and distinct from the premises Nos. 35 and 37 Yesey street, but in their present condition, and not as if separated by a party wall or other division from the said premises Nos. 35 and 37 Vesey street.”

It is conceded that although this request as a whole was refused, the referees acted upon the proposition therein embraced, except as to the words italicized. Thus the defendants’ contention is that in estimating the damage done to 64 Church street, the referees should have taken into consideration the benefits which it derived from its connection with 35 and 37 Yesey street. But these benefits, if considered at all, would simply have tended to appreciate the value of 64 Church street generally, not to lessen the depreciation caused by the maintenance of the defendants’ .structure. The depreciation thereby caused would be substantially the same, whether we start with one value resulting from connection with the Yesey street building, or another value resulting from the isolation of the Church street building. Again, the indirect damage to the Yesey street property was rigidly excluded. It was found that these premises had no share in the easements of light, air and access over Church street, and that the damages must be confined to such as were occasioned to the latter property; that is, specifically, to twenty-five feet fronting on Church street by fifty feet deep. It would, therefore, have been grossly inequitable to charge the plaintiffs with prospective benefits derivable from the connection of the two properties. The rear of the one property is at present the rear of the other, and thus the rear of the Yesey street property is necessarily more or less injured by the maintenance of the railway on Church street. The darkness on Church street was fairly offset against the light on Yesey street. The actual line of demarcation may be drawn at any time, and the plaintiffs’ Church street lot (found, as above stated, to be twenty-five feet in front by fifty feet deep) completely walled in.

All these matters were in the minds of the referees and were properly considered. It was a somewhat embarrassing and difficult problem, but we think the referees have solved it fairly. They looked the whole situation over, and after a personal inspection of the premises made an award which seems to be fair and just, and we do not think it should be disturbed.

The defendants’ second point, that the referees erred in awarding damages which accrued more than six years prior to the commencement of the action, is not borne out by the facts. The referees awarded no such damages. What the defendants desire to convey is that certain leases were executed prior to the six years in question, and that, consequently, the entire damages on that head accrued at the time such leases went into effect. The point with regard to the statute of limitations, made upon this •state of facts, was directly decided against the defendants’ contention in Conkling v. Manhattan Railway Company, 36 St. Rep., 126.

The only other point calling for special consideration is the ■allowance for damages for injury to the rental value of the premises subsequent to the commencement of the action. This point was raised in the Suarez case, 39 St. Rep., 549, but it was not determined, as the defendants themselves there requested the court to find damages down to the time of the trial. We think, however, that the damages were properly 'allowed. Rulings to the contrary were in common law actions. In equity, however, complete relief is afforded, thus avoiding multiplicity of suits and circuity of action. To accomplish this, damages for loss of rental must be allowed down to the time of trial. Interest on the sum awarded for fee value until that sum is paid must also be allowed. .If such damages were not allowed, there would be a gap which ivould necessitate a fresh action or a specific loss to the injured-party. In Madison Avenue Baptist Church v. Baptist Church in Oliver Street, 73 N. Y., 95, Earl, J., says: “It' is the practice of courts of equity, when they have once obtained jurisdiction of a case, to administer all the relief which the nature of the case and facts demand, and to bring such relief down to the close of the litigation between the parties.

This statement of the law is quoted with approval in the Henderson case, 78 N. Y., 438; and in Barrick v. Schifferdecker, 123 N. Y., 56; 33 St. Rep., 485, “the rental value to the time of the trial ” was spoken of as, with a sum necessary to make certain repairs, covering the plaintiffs’ damages. The principle is, that where a court of equity once has jurisdiction, it affords all the relief which the nature of the case demands; that is, complete relief; relief which will end the differences between the parties. I see no difficulty, therefore, either upon principle or authority, in. sustaining this award of damages down to the time of the trial.

The judgment appealed from should therefore be'affirmed, with costs.

Van Brunt, P. J.

This being an action in equity, I have concluded upon a careful examination of the question that Mr. Justice Barrett is correct in concluding that damages may be recovered down to the time of the trial in these cases. The rule in actions at law is undoubtedly that damages can only be recovered up to the time of commencement of action, and that such action is no bar to recovery of damages for subsequent trespass or for a continuation of the trespass after the commencement of the action. Uline v. N. Y. Central R. R. Co., 101 N. Y., 98, 116; Silsby Manufacturing Co. v. State of N. Y., 104 id., 562; 6 St. Rep., 463; Hambleton v. Veere, 2 Saund., 169; Bowyer v. Cook, 4 C. B., 236; Holmes v. Wilson, 10 A. & E., 503. All these cases were actions at law to recover past damage. In them no recovery could be had for future damage and no rights could be acquired in these actions by which the trespass might be continued. In actions in equity of the kind of the one at bar, the trespass is treated as one to continue, a compensation for such continuance is awarded, and the right to continue acquired; hence it is proper that the whole of the rights of the plaintiff and defendant should be adjudicated upon and adjusted in one action, so that no new action may be necessary to protect the plaintiff for the damages sustained between the time of ■ commencement of action and time of trial; no-right of action arising after the trial. I therefore concur. •

"Daniels, J., concurs.


author: Van Brunt, P. J. Patterson, J.

text:
    James S. Hart, App’lt, v. William L. Washburn, Ex’r, et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    Abatement and kbvtvor—Appeal prom judgment against trustee op-MANUFACTURING COMPANY.
    Pending an appeal from an order setting aside a default in an action against the trustee of a manufacturing company for failure to file an annual report, the defendant died. Held, that as the parties were litigat- . ing over the judgment entered in the action, the death of the defendant did not operate to abate the action, whatever it might do if the parties were litigating over the original cause of action, and that an order reviving the action against his executors was properly granted.

      (Carr v. Rischer, 119 N. Y., 123; 28 St. Rep., 260, followed.)
    Appeal from order reviving this action against the executors of the original defendant.

      Wm. S. Andrews, for app’lt; H, G. Wood, for resp’ts.
   Van Brunt, P. J.

This action was brought to recover a liability imposed by the act of 1848 for the failure of the defendant to make and file the annual report of a mining company, of which the defendant was a trustee. A judgment was entered by default in favor of the plaintiff against the defendant, and a motion was made to open this default, which was granted. An appeal was taken to the general term, and pending this appeal the defendant died. A motion was then made to revive the action against the executors, which motion was granted, and from the order thereupon entered this appeal is taken.

It is claimed upon the part of the appellant that the motion should have been denied, because the action being for a penalty imposed by statute died with the person, and cannot be revived against the executors of the defendant.

- It is not necessary to discuss the propositions that the cause of action is penal in its nature, and abates with the death of the defendant. But in the case at bar the plaintiff had already acquired a judgment. It is true that that judgment had been set aside, but he had appealed from the order setting aside the judgment to the general term, and that appeal was pending; and as far as that appeal was concerned, the litigation was over the judgment and not over the original cause of action, thus bringing the case precisely within the terms of Carr v. Rischer, 119 N. Y., 123; 28 St. Rep., 260, in which case a trial had been had,” a verdict rendered and a judgment entered, from which judgment the defendant had appealed to the general term, where the judgment was reversed and a new trial granted, and an appeal taken from the order of ¡reversal, and then the defendant died. A motion was then made to dismiss the appeal in the court of appeals, upon the ground that the action had abated by death, and that court held that the wrdng was merged in the judgment, and that the reversal of the judgment did not strike the judgment out of existence, inasmuch as the judgment might be restored upon appeal to that court, and that the action might be continued for that purpose.

In the case at bar, it is true that the judgment had been set .aside by the order of the special term, opening the default, but an appeal was pending from that order, and that judgment might be reinstated upon that appeal, as has been done by the decision of this court, handed down herewith.

Under the principles laid down in the case cited, the plaintiff had a right to continue the action against the personal representatives of the defendant for the purpose of ascertaining whether or not that judgment could not be restored upon appeal. We see no distinction whatever between the case and the principle which controls, which is that the wrong having been merged in the judgment, so long as the parties are litigating-over the judgment, death does not operate to abate the action, whatever it might do when the parties are litigating over the-original cause of action.

The order appealed from should be affirmed, with ten dollars-costs and disbursements.

Patterson, J.

I concur. There was a property right in the-judgment, and the case is directly within the ruling in Carr v. Rischer, as is pointed out in the opinion of the presiding justice.


author: Barrett, J.

text:
    The People ex rel. Michael G. Kuhn, Resp’t, v. The Protestant Episcopal House of Mercy, App’lt. In the Matter of the custody of Josephine Kuhn.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    Vagrants—Commitment—Laws 1883, chap. 410; Laws 1886, chap. 353.
    The recital of the child's age in a commitment, under § 1466 of the consolidation act, as amended by the act of 1886, is conclusive only so fares the jurisdictional fact that the child was over twelve and under twenty-one is concerned. The statutory judgment, committing the child during her minority, must stand by itself and is not qualified by a videlicet, “ to-wit, of the age of seventeen years” attached to the recital of the jurisdictional fact, and the child is entitled to he discharged on actually arriving-at majority, notwithstanding such statement.
    Appeal from a final order of the special term directing the-release and discharge of Josephine Kuhn from the custody of the appellant; also from an interlocutory order overruling the demurrer interposed by the appellant to the traverse to the return to the writ of habeas corpus issued herein.

      Courtland V. Anadie and E. T. Gerry, for app’lt; Andrew Corn-stock, for resp’t.
   Barrett, J.

Josephine Kuhn was committed under the consolidation act as amended in 1886. Laws 1882, chap. 410;; Laws 1886, chap. 353. One of the jurisdictional facts therein specified is, that when brought before the committing magistrate the female child shall be “ over the age of twelve years.” It is also provided that every commitment made: under the act shall state the name and age of the female so convicted ; also the term of commitment, which, if the female so-convicted is an adult, shall be six months, or if a minor, during-her minority.

The commitment in the present case states the age of the child as follows: “ Over the age of twelve years and under the age of twenty-one years; to wit, of the age of seventeen years.” The-writ of habeas corpus was here issued and the child discharged upon the ground, admitted as matter of fact by the demurrer to-the traverse, that the child attained her majority on the 27th of May, 1891, and that, consequently, her period of restraint under the commitment had expired. The appeal is based upon the-contention that the recital of the child’s age in the commitment: is conclusive and cannot be reviewed upon habeas corpus. So far as the jurisdictional fact that the child when committed was over the age of twelve years and not an adult is concerned, we entirely agree with the appellant The court has no authority upon habeas carpus to review an adjudication on that head lawfully made by the committing magistrate. We could not, for instance, discharge the child upon proof that she was really but eleven years of age when brought before the magistrate. That would be an attack upon his judgment foreign to the office of a writ of habeas corpus. See People v. The Superintendent, 8 Abb., N. S., 112; People v. The Keeper, 37 How., 494. But the present application is not in hostility to the commitment. It concedes the correctness of the judgment and asks for the child’s freedom upon the sole ground that her term of commitment under the judgment has expired. The judgment was not that she stand committed for four years, but during her minority. If the judgment had directed her commitment for four years, it would have been void as unauthorized by the statute and as indefinite with regard to the date of her majority. The magistrate, it is true, is directed to state in the commitment the age of the female child, but an inaccuracy on that head would not vitiate the proceedings even upon certiorari, so long as the jurisdictional fact that she was over the age of twelve years and under twenty-one was correctly found. The object of the provision which requires that every commitment shall state the name and age of the female so committed,-together with the cause of her commitment, was undoubtedly to enable the institutions designated for the reception of such persons to classify them as required by the act, § 1466, subd. 2, and to keep those of the first class separate from those of the second ; also, in a general way, to guide such institutions as to the probable period of discharge, and, consequently, as to their capacity from time to time to receive fresh subjects.

It could not have been for the purpose of fixing the precise term of restraint by years, months and days, for there is nothing in the act requiring a specification either of the date of birth or the date when majority will be reached. Indeed, in the case at bar, it would be impossible, on the face of the commitment, to specify the precise date when the child would be entitled to her discharge. That would clearly require evidence aliunde the commitment. For assuming that the adjudication that she was “of the age of seventeen years ” was conclusive, still, when would she be discharged ? The recital is, not that she was seventeen years of age on the 13th day of January, 1889, the day when the commitment was signed, or any other particular day. The recital in question might, indeed be true if she had attained her seventeenth year on the 12th day of January, 1889, or even on *he 14th day of January, 1888. It is apparent that the statutory judgment must stand by itself; that such judgment simply commits the female child during her minority, and that it is in no wise qualified by the videlicet, “ to wit, of the age of seventeen years,” attached to the recital of the jurisdictional fact. 11 The office of the videlicet,” says Bouvier, “is to mark that the party does not undertake to prove the precise circumstances alleged.” Its office in this commitment is plainly to mark that the magistrate does not undertake to recite or to find the precise age of Josephine Kuhn.

We think the respondent should have had final judgment on the demurrer to the traverse. The statement in the traverse with regard to the proceedings before the magistrate standing alone would, of course, have been demurrable. But the allegation that Josephine Kuhn “ was born on the 27th day of May, 1870, and, consequently, was twenty-one years of age on the 27th day of May, 1891, was a statement which, being conceded' by the demurrer, established the fact that she had attained her majority, and, consequently, that the term for which she was committed had expired.

Both orders should, therefore, be affirmed.

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


text:
    Joseph Brady, Pl’ff, v. William H. Beadleston et al., Def’ts.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    1. Replevin—Bab.
    The failure of a defendant in replevin to demand and obtain affirmative relief, where the property has been delivered to the plaintiff, is not a bar to a subsequent action by him for the value of such property.
    3. Same—Evidence.
    A general judgment in favor of the defendant is conclusive between the parties on the question of ownership, and evidence on that question is inadmissible in the action subsequently brought by the defendant.
    Exceptions ordered to be heard in the first instance at general term.

      A. Eckuard Woodruff, for pl’ff; Moses Wdnman, for def’ts.
   Barrett, J.

Stripped of verbiage, the complaint states that the plaintiff Brady was the owner of an ice box, for which the defendants, who compose the firm of Beadleston & Woerz, brought replevin against him in a district court. The marshal in that action, under the usual preliminary proceedings, took the ice box away from Brady and delivered it to Beadleston & Woerz. The complaint there set up title to the ice box in Beadleston & Woerz, and averred that it was wrongfully detained from them by Brady, after demand. Issue was joined by the filing of Brady’s answer, and the issue was tried and a general judgment rendered for the defendant Brady, with costs. Thereupon this action was brought, and upon the trial at circuit the plaintiff had a verdict for eighty dollars. The defendants’ main contention is, that the plaintiff should have obtained his relief in the action in the district court, that he was bound to assert his rights there and to secure an affirmative judgment for the return of the ice box “ either with or without damages for the taking, withholding or detention thereof,” Consolidation act, § 1842, and that having failed to do so, this action cannot.be maintained. We think this position is untenable. It was optional with the defendant in the replevin action to take advantage of this provision of the statute.

It was held in Yates v. Fassett, 5 Denio, 21, that where one who was sued in replevin in the delinet and pleaded non-detinet, and had a verdict in his favor with judgment for costs, but not for a return, afterwards brought trover for the property against the former plaintiff, such action was maintainable, though he might have so pleaded in the first suit as to have entitled himself to a return or to the value of the property in damages. The principle that parties are concluded by the final judgment of a court of competent jurisdiction, not only .as to the subject-matter actually determined, but as to every other matter which was in issue and which the parties might have litigated, is not applicable, for the reason that the defendants’ affirmative claim to the property is in the nature of a cross-suit arising from the summary act of the plaintiff in taking possessioii under the replevin writ. The defendant is allowed by the statute not merely to defend himself against the charges of the complaint, but to set up his affirmative rights as against the actual taking under the provisional remedy. This view was enforced by cogent reasoning in the case cited (pages 31 and 32), and the following observations of Whittlesey, J., are directly in point:

“ But as the defendant made no claim of title, the verdict could not find any title in him, nor the court adjudge any return to him. Such verdict ascertains nothing as to the title of the property, except that it was not in the plaintiff. If the defendant, in whom the title really is, afterwards institutes an affirmative action to obtain possession, is it a sufficient answer on the part of the former plaintiff, who is adj udged to have no title, if he avérs that the real owner should have interposed his claim in the former suit, and having neglected to do so, shall be decreed to have lost it ? I cannot think it is. The plaintiff in the replevin suit was permitted summarily to take possession of the property. On this account the defendant, as a favor, is permitted to plead title with the view of having a return adjudged in the same suit. But I cannot think that he is compelled to plead or be barred from setting up his title afterwards.”

This case was considered and approved in Angel v. Hollister, 38 N. Y., 378, where Woodruff, J., remarked that the fact that the plaintiff “has no affirmative judgment for a return does not, per se, show that he is not entitled to the possession. The illustration given in Yates v. Fassett is apt and conclusive. A defendant in an action may, in a proper case, recoup his damages, and may obtain his affirmative judgment, but the fact that he omits to recoup does not bar his cross-action.”

In this latter case, McKnight v. Dunlop, 4 Barb., 36 (upon which the defendants here rely), was reviewed, and so far as it seems to conflict with Yates v. Fassett, disapproved, Miller, J., stating that the latter case “ has never been directly considered and overruled, and that it should stand as the .better exposition and elucidation of the principle involved and as a well considered ¡and sound decision of the question.” If these views are applicable to the courts of record, a fortiori they should govern in the district courts, where people ignorant of the technicalities of practice so frequently appear without counsel. We think, therefore, that the plaintiff was entitled to maintain this action, and that his failure to obtain affirmative relief in the district court was no bar thereto.

It is also contended that the learned judge erred in excluding evidence tending to show the defendants’ ownership of the icebox. But that question was settled against the defendants in the district court and was res adjudicata. We must assume, in the absence of extrinsic evidence, that the allegations of the plaintiff’s complaint in that action were there put in issue. We find in that complaint an allegation of title in the plaintiffs there, and we also find that a general judgment was rendered in favor of the defendant Brady. ' If the issues actually decided did not embrace the question of title, if the judgment was rendered upon some subsidiary ground, such as the failure to prove a demand, it was incumbent upon the defendants here to make that appear. The judgment was prima facie a bar, and the burden was on them to prove that it was not res adjudicata with regard to some particular alie- _ gation of the complaint put in issue by the answer. This doctrine was laid down in Dear v. Reed, 37 Hun, 594, where a judgment, general in its terms, and disclosing no ground upon which it was rendered, was held to be presumptively a determination of all the issues involved, and that the burden was with the party claiming the contrary to prove that it was not We may add that the proof offered by the defendants on this latter head was, in itself, incompetent, and was properly excluded.

The question of damages was fairly submitted to the jury, and they were properly permitted to allow the real value of the icebox, and the damages actually caused by its removal. And the verdict, under all the circumstances, was certainly moderate.

The exceptions should, therefore, be overruled, and judgment ordered in favor of the plaintiff upon the verdict, with costs.

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


author: Van Brunt, P. J.

text:
    Lucy M. Rice, Resp’t, v. Henry Thompson, Impl’d, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    Dower—Admeasurement—Stay.
    An action to admeasure dower will not be stayed, where the right of the plaintiff to dower is not disputed, to enable a person who has come in and bought from one of the heirs to have the dower admeasured in a partition suit subsequently brought.
    Appeal from interlocutory judgment adjudging the plaintiff’s dower in certain premises to be admeasured by a referee thereby appointed.

      M R. Robinson, for app’lt; F. H. Man, for resp’t.
   Van Brunt, P. J.

This action was brought for the admeasurement of dower by the plaintiff as the widow of one John S. Bice, who died intestate, seized of these premises, against his three children to whom the property had descended, and certain tenants and the appellant Henry Thompson, who had contracted to buy from one of the children his undivided share in the property.

The complaint alleged the marriage of the plaintiff to said Rice, the death of Rice intestate, seized and possessed of the real estate in question; that the defendants, the children of Rice, were the owners in fee of the lands and premises as tenants in common, subject to the dower right of the plaintiff in the premises, and that one of the defendants Rice had contracted to sell to the defendant Thompson all his right, title and interest in the premises. The complaint then alleges the names of the occupants of the premises ; that no portion of said premises had ever been admeasured to the plaintiff for her dower therein and that her dower was never assigned to her.

The complaint further alleged that it was not practicable to ad-measure and lay off a distinct parcel of the real property to constitute the one third part of which the plaintiff’s dower was to be admeasured without great injury to the interests of all the parties concerned, and prayed judgment that her dower in the premises might be admeasured and that the share to which the plaintiff was entitled in the rental value of the premises might be ascertained and paid to the plaintiff annually during her life.

The defendant Thompson’s answer admitted the marriage of the plaintiff, the seisin of her husband of the premises in question; that the defendants Rice had the interest in the premises mentioned in the complaint which was subject to the dower right of the plaintiff, and that no admeasurement of dower had been made; and then set up the further and separate defense that the building then upon the premises was insufficient for the proper development and improvement of the land, and that all the leases of the building terminated on the following February, and the consequent impossibility of ascertaining with any certainty the share of the rental value of the said premises to be paid to the plaintiff daring her life, and the fact that a charge upon the real estate for the estimated amount of such share of said rental value would be detrimental to the interests of the defendant Thompson and the other tenants in common. It further alleges the acquisition by Thompson, by means of a contract, of an equitable title to an undivided third of said estate at a time prior to the commencement of this action; and the fulfilment of said contract and the acquisition of a legal title to said undivided third subsequent to the commencement of this action. It then alleges the subsequent commencement of an action for the partition and sale of the premises, the complaint in which action prays for the adjustment of the plaintiff's dower right. Andón these facts the defendant insists on his right to have ascertained and finally settled by means of a sale in the action for partition the dower right of the plaintiff in the premises in question.

Upon these pleadings a motion was made for judgment as prayed for in the complaint. In answer to this motion the defendant submitted affidavits from two real estate agents who were familiar with the property in question, by which he claims facts were stated showing the impossibility of reaching any accurate estimate of the amount of the rental value paid to the plaintiff, and also that a charge on said real estate would be uncertain, inaccurate and detrimental to the interests of the tenants in common, by preventing a sale of the premises and seriously injuring future improvements by preventing the borrowing of money for such improvements.

The court granted the application for judgment and from the judgment thereupon entered this appeal is taken.

It is urged that the plaintiff is not entitled to the interlocutory judgment which was directed, and that,

“The answer of the defendant Thompson in this action, while admitting that the estates of the owners are subject to the ‘dower right’ o£ the plaintiff, does most distinctively dispute the right of the plaintiff to the admeasurement which she asks for, upon the ground that such admeasurement in the present condition of the premises would be destructive of the rights and equities of the tenants in common, and also, upon the ground of the preference which equity ought to give his partition suit to the plaintiff’s action, because only in such partition suit the question whether the plaintiff’s-dower right should be excluded from or included in the sale of the premises can be decided, and it cannot be decided in the plaintiff’s action.”

And it is urged that the provisions of § 1607 of the Code should not be interpreted in the limited manner in. which they were done by the court below, and that it was not the intention of the legislature to compel the court under all circumstances to go on with the admeasurement when, although the dower right is admitted, the answer shows that such admeasurement is unnecessary and inequitable; and attention is called to the provisions of the Code which provide that where an actual partition of the real estate is not possible and where the interests of the tenants in common so require, a sale may be had in the partition action of every estate and interest in the land free from all claims whatever and to substitute in the place of the land its proceeds for the benefit of the persons interested therein ; and that § 1538 requires that “every person having a right of dower in the property or any part thereof ‘which has not been admeasured must be made a party to an action for partition,” and that therefore it was the intention of the legislature that the widow’s dower should be ad-measured in the partition suit where such suit was instituted prior to the bringing to trial of the dower action, rather than in the dower action itself.

We think this position is not tenable. The language of the Code is unqualified, § 1607 provides that “ if a defendant makes default in appearing or pleading, or if the right of the plaintiff to dower is not disputed by the answer, * * * an interlocutory judgment must be rendered,” etc.

In the case at bar the plaintiff’s right to dower was not disputed in the answer. On the contrary it was expressly admitted, and only equitable considerations were set up tending to show the court that it should not be admeasured.

Whether the court in its discretion would have the right to postpone the admeasurement of dower for any reason whatever in order that the rights of the parties might be fixed in a partition suit it is not necessary to determine here.

But it is not ordinarily the rule that the action of the most diligent party shall be suspended until the trial of some other action, subsequently brought by some other party, in which perhaps the same question might be determined. Dower is a favored estate ; the widow’s title is superior to that of the tenants in common ; and in the ease at bar she had commenced her proceedings for the purpose of having it admeasured, and there seems to be no reason why her suit should be stayed while the person who had come in and bought from the heirs of the intestate should have an opportunity to have her dower admeasured in a partition suit.

It does not appear that any of the heirs complain, and if the appellant did not desire to run the risk of having the dower ad-measured in the proper action brought by the widow, he need not have made his contract to purchase.

We see no reason why this appellant, who has voluntarily thrust himself in as a tenant in common of the premises in question subject to this dower right, should be able to postpone the action of the widow to have her dower admeasured until he can sell the real estate in partition.

The judgment should be affirmed, with costs.

Barrett and Andrews, JJ., concur.


text:
    Otto Heinze et al., Resp’ts, v. Oliver W. Buckingham et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    Factors—Liability of assignee of goods fob advances.
    One B. consigned certain goods to plaintiffs for sale, on which they made advances. Thereafter B.’s interest in them, was assigned to defendants, to whom plaintiffs r. ndered accounts, showing the charges for advances and credits for sales as they took place. In an action for a balance claimed to be due on the transaction, the court refused to charge that if defendants made no agreement to assume the commissions agreed to be paid by B., or to pay commissions, plaintiffs could not recover, or that by the assignment to defendants they did not assume any liability for the advances made to B. or the commissions. Reld, error; that defendants could become liable personally for such advances or the commissions agreed to be paid by B. only by an agreement express or implied to assume his obligation.
    Appeal by the defendants from a judgment in favor of the plaintiffs entered upon a verdict at circuit, and also from the denial of a motion for a new trial.

      John J. Adams, for app’lts; Arthur P. Heinze, for resp’ts.
   Barrett, J.

In the year 1887 one Ryan consigned certain goods to the plaintiffs for sale on commission. The plaintiffs made advances to Ryan upon these goods. In' July of the same year Ryan transferred all his right, title and interest in the goods to one Pine, and Pine transferred the same interest to the defendants. Thus the defendants became the owners of the goods in the plaintiff’s hands, subject to the advances made to Eyan and subject also to the arrangement between the plaintiffs and Eyan under which the goods were taken and the advances made. The goods were sold from time to time thereafter, and accounts were rendered to the defendants showing charges for advances and interest, and credit for net proceeds of sales.

The last of these accounts was rendered on the 81st of December, 1889, and shows a balance against the defendants of $286.40. This balance is made up of what remained unpaid of the original advances to Eyan and the interest thereon, after crediting the sales of all the goods; and it is for this balance that the present action was brought. We do not understand upon what theory the defendants are sought to be made liable for this balance. They never assumed Eyan’s personal obligation for the advances made to him, and for aught that appears, that obligation still exists. The goods in the plaintiffs’ hands were of course liable for the advances, interest and commissions agreed upon, and Eyan was liable personally for any balance of account. But the transferees of the goods could become liable in personam for the advances made to Eyan only upon proof of an agreement, express or implied, to assume Eyan’s obligation. No such express agreement is claimed. But it is said that such an agreement may be inferred from the accounts rendered to the defendants from time to time and received without objection. These accounts, however, are quite as consistent with the opposite inference. What they really show is, the sales of the goods and the reduction thereby of the advances. They are accounts in form between the plaintiffs and the defendants, made out as though the defendants were the original consignors, but in substance they simply point out the equity of the defendants from time to time in the remaining goods. It is true they charge the defendants with the advances and the interest thereon, but that was as against the goods and not personally. Accounts could not very well have been made out as between the plaintiffs and the goods. Nor as between the plaintiffs and Eyan. They were properly made out as between the plaintiffs and the defendants.

But the object was to inform the defendants each time they were rendered what goods had been sold, and, consequently, what goods remained unsold, and the extent of the plaintiffs’ lien upon such unsold goods. In other words, to tell the defendants precisely how they stood with regard to the goods, and what their chances were of realizing something from them over and above the plaintiffs’ advances, interest and commissions. The defendants’ interest in the final result also accounts for their suggestions and even for their instructions as to price. But if, upon all the facts, there was enough to go to the jury upon the question of an implied assumption by the defendants of Eyan’s obligation, we think the learned judge erred in refusing to charge as requested at the close of the case. The record on this head is as follows:

“ Defendants’ counsel asks the court to charge the jury as follows :
“ That if the defendants made no agreement with the plaintiffs to assume the commissions agreed to be paid by Ryan, the plaintiffs cannot recover.
“ The court declines ,30 to charge, and defendants except
“ That if the defendants did not agree to pay commissions, the plaintiffs cannot recover.
“Declined and defendants except.
“ That by the assignment from Ryan to the defendants the defendants did not assume any liability for the advances made to Ryan or the commissions.
“Declined and the defendants except”

We do not doubt that the defendants took the goods from Ryan .subject to whatever agreement was made with regard to commissions, and, consequently, that the goods were chargeable with such commissions. But we do not think that the defendants were personally liable for such commissions unless they assumed Ryan’s obligation on that head, or unless they made the plaintiffs their own agents for the sale of the goods. The first proposition covered any agreement, express or implied, to assume such commissions, and the second proposition covered any agreement, express or implied, to pay commissions directly. We think these propositions were correct and should have been charged. The third proposition was also clearly correct The defendants certainly assumed no personal obligation, either for the advances made to Ryan or for the commissions which he had previously agreed to pay by taking an assignment of their transferor’s right, title and interest in the goods. If they did assume any such liability, either expressly or by implication, it was not by the assignment itself, but by their subsequent acts. As the case was put to them, the jury were justified in holding the defendants upon the assignment standing alone.

The judgment and order appealed from should be reversed and a new trial ordered, with costs to appellant to abide the event

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


text:
    Marcus Nathan and Samuel Cohen, App’lts, v. Coles Morris et al., Ex’rs of J. Josepha Neill, Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    Yendor and purchaser—Incumbrances—Evidence.
    Where a contract for the sale of land provides for a deed conveying the land free from all incumbrances except leases and taxes, the purchaser cannot be required to take subject to a building restriction or other incumbrance although he had knowledge thereof, and evidence of such knowledge is not admissible against him in an action to compel the delivery of the deed called for by the contract or the return of the money paid thereon.
    Appeal from a judgment in favor of the defendants, rendered at special term, dismissing the plaintiffs’ complaint upon the merits.

      0liarles Strauss and Arthur Hurst, for app’lts; Hdgar J. Nathan, for resp’ts.
   Barrett, J.

This action was brought by the plaintiffs, as vendees of a piece of real estate in this city known as 105 Bléecker street, against the defendants as vendors, for the specific performance of a contract of purchase, and, in case of inability on the defendants’ part to deliver a proper deed, for the return of the sum paid on account of the purchase money together with the expenses of examining the title. By the terms of the contract, which was under seal, the defendants agreed to give the plaintiffs “ an executor’s deed, with covenant against their acts, for the conveying and assuring to them (the plaintiffs) the fee simple of the said premises free from, all incumbrances except leases now existing, which expire the first day of May, 1891, and the taxes on said premises for the year eighteen hundred and ninety.”

Upon the day when the contract was to be performed the parties met and the defendants tendered a deed which contained no covenant against incumbrances other than those of the grantors’ creation. The plaintiffs declined to receive the deed or to pay the balance of the purchase price, upon the ground that the property was subject to an incumbrance, in the nature of a restriction against building upon ten feet of the frontage of the lot. That this restriction existed under a deed made as far back as the year 1829 is conceded, and that it amounted in law to an incumbrance is entirely well settled. Roberts v. Levy, 3 Abb., N. S., 311; Huyck v. Andrews, 113 N. Y., bottom of page 86; 21 St. Rep., 924; Anon., 2 Abb. N. C., 56; Wetmore v. Bruce, 118 N. Y., 319; 28 St. Rep., 687; Same case below, 54 Supr. Ct., 149. The learned judge, xinder objection and exception, admitted paroi evidence to prove j that the plaintiffs signed the contract with full knowledge of this restriction, and agreed to purchase the premises subject thereto. There was a conflict of evidence on that head, which was solved in the defendants’ favor, and thereupon the learned judge made the following finding of fact: '

“ Seventh. At the time of the execution of said contract of sale the plaintiffs had actual knowledge of the existence, extent and effect of such restriction, and agreed to purchase said premises subject thereto.”

Upon this it was held, as a conclusion of law, that the existence of the restriction was no valid ground for the refusal of the plaintiffs to accept the title tendered by the defendants, and, accordingly, the complaint was dismissed.

We are of opinion, in view of the clear and unambiguous covenant embodied in the contract under consideration, that this was error. Where an obligation depends upon an implication, or where the language used is of doubtful import, paroi evidence of notice may be admissible. It is then permitted for the purpose of showing what was in the minds of the parties when the contract was made. It is not permitted for the purpose of varying the contract, but by reading it in the light of the surrounding circumstances to get at its true intent and meaning; in other words, to enable the court to ascertain what the written contract really was.

If, however, the written contract is precise and clear, if it leaves nothing to implication, paroi evidence is unnecessary to ascertain the exact bargain; and, if admitted, it can only be to vary the contract. This clearly cannot be done, and however unfortunate it may be that the contract under consideration was not drawn to cover the paroi understanding, the court cannot go behind the deliberate engagement which the parties chose to sign and seal. It is difficult to imagine a clearer covenant than that now before us. The fee is to be conveyed free from all incumbrances except two, which are distinctly specified. The defendants wish the "court to except a third, which was not specified, and to do this upon evidence that the exception was verbally made. If this were admissible, why might not the contract be further varied by a fourth or a fifth exception, covering a mortgage or an easement, or both ? We are referred to certain cases which hold that trifling incumbrances upon the title, which were known to the vendee at the time he contracted to purchase, will not prevent a decree of specific performance. Ten Broeck v. Livingston, 1 Johns. Ch., 357; Winne v. Reynolds, 6 Paige, 407.

In two respects these cases are plainly distinguishable from the present. In the first place the incumbrances there were trifling. In Ten Broeck v. Livingston, the proportion of the quit-rent which would have fallen on the plaintiff’s farm, if it was then to be collected, would have been but fifty-four cents a year. It was, as Chancellor Kent said, nothing more than a recognition of manorial seigniory, which in early days was deemed a matter of some importance. There was no evidence that this rent had been demanded or paid for sixty years prior to the making of the contract. It was upon these facts that the chancellor held that the quit-rent was never within the contemplation of the parties as an obstacle to title. In Winne v. Reynolds, there was a pre-emption right of purchase which. Chancellor Walworth treated as a partial restriction upon the power of alienation. “ It is,” said the chancellor, “ a remnant of feudal vassalage, which a freeman would not be willing to have his land subjected to, although the actual injury to the owner of the land would amount to very little in a pecuniary view.” In the case at bar, the restriction is by no means trifling. On the contrary, the proof was that the restriction impaired the value of the lot to the extent of some $13,000.

The second and decisive point of distinction is, that in neither of these cases was there an express covenant with regard to incumbrances. This was specially referred to by Chancellor Walworth in Winne v. Reynolds. This is his language: “ It is evident that the defendant, under the decree in this case, will have the same title which he expected to obtain when he entered into this contract with the complainant. And as the evidence of the previous knowledge of the defendant of the state of the title does not contradict any thing contained in the agreement itself, the vicc-chanoellor was right in decreeing a specific performance.” The distinction between an express covenant that the property shall be conveyed free from incumbrances and the implication on that head which, arises from the covenant to give a good title is clearly pointed out by Chancellor Runyon in Newark Savings Institution v. Jones, 37 N. J. Eq.. 451. “The agreement is silent” he observes, “as to the character of the title to'be given, and while in such case, in the absence of proof to the contrary, the implication arises that the title to be conveyed is a good one and therefore free from incumbrances, that implication may be rebutted. Notice is sufficient to rebut the mere implication and paroi proof is on this ground admissible." In such a case, that is, where there is no express covenant- and what was intended is left to implication, the vendee “ must,” to quote the language used in James v. Lichfield, L. R., 9 Eq., 51, “ be taken to have had present in his mind all those things of which he had notice.” Where, however, nothing has been left to-implication or to doubtful phraseology, there is no reason why an express covenant in such a contract should be affected by notice of easements, restriction or other incumbrances any more than if the covenant were contained in an ordinary deed of conveyance. That knowledge or notice of the existence of an easement on the part of a grantee would be no defense to an action against the grantor for the breach of a covenant against incumbrances was expressly held in Huyck v. Andrews, 113 N. Y., 81; 21 St. Rep., 924, where the language of Bronson, J., in Mott v. Palmer, 1 N. Y., 564, was quoted with approval. Judge Bronson there said, it was a proposition too plain to be disputed that paroi evidence ' was inadmissible to control the legal effect and operation of a deed, and that if the plaintiff had been told at the time that. Brown owned the rails, and more, “ if the rails had been expressly excepted by paroi from the operation of the grant and covenant, it. would have been no answer to the action.”

There are exceptional cases where the covenant may be reformed or rectified upon the ground of mistake, clearly and conclusively established. In such a case, as is said in Dart on Vendors and Purchasers, 6 Ed., 886, the fact of notice “ can be used as the basis of an inference that it could not have been the intention of the parties that the covenant should include a defect of which both parties were aware.” It was undoubtedly with reference to-such a case that Mr. Justice Parker, in Wetmore v. Bruce, supra, observed that “ it might have availed the plaintiff, could he have shown that the defendant had notice of the restriction and purchased with full knowledge of its existence and effect.” The defendants here made no claim to reform or rectify the covenant.. They asked no affirmative relief, nor did they state any facts which could serve as a basis for such relief. They did not pretend that the restriction was omitted by mutual mistake or mutual oversight On the contrary, they said that the contract was drawn as-it is advisedly and deliberately, after the paroi agreement was-made. They insisted, and still insist, that there was no mistake, even of law, for the reason that, in their judgment, then and now, the plaintiffs, by the contract as drawn, agreed to take subject to-the restriction. They also claimed, and they still claim, that the property was described by its ward number as well as by its street-number, and that the words “ more or less ” were added to the specified dimensions with reference to the restriction in question. It is needless to say that neither of these formalities can have any bearing upon the real question, namely, the effect of the express covenant. Indeed, these suggestions merely evoke the natural and pertinent inquiry why, if it had been intended to convey subject to the restriction, such pointless methods were resorted to rather than the few plain words which would have been conclusive?

Upon the pleadings and proofs, as they stood upon the trial, we think the plaintiffs were entitled to the relief prayed for, and the judgment appealed from should, therefore, be reversed and a new trial ordered, with costs to the appellants to abide the event

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


text:
    The Mayor, etc., of New York, Pl’ff, v. The Twenty-Third Street Railroad Co., Def’t.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    New yoke city—Street car licenses—Laws 1860, Oh. 514
    By defendant’s charter it was required to pay the same license fee for each car as was then paid by other roads. At that time under a- city ordinance the other roads were required to pay $50 annually, except “the small one horse passenger cars,” which were required to pay $25. Held, that the license fee in the ordinance was predicated on the size of the cars run, and not on the number of horses, and that a car which was known at the time of the passage of the ordinance as a one horse passenger car was subject to a license fee of only $25, even though it might be drawn by more than one horse.
    Controversy submitted without action.

      Thos. Allison, for app’lt; O. E. Bright, for def’t
   Van Brunt, P. J.

The question presented by this submission is whether the defendant must pay to the plaintiff a license fee of $25 or a license fee of $50 upon each of a large number of cars-run by the defendant in the city of New York during the years 1881 to 1885, both inclusive.

The franchise under which defendant runs its cars was conferred by chap. 514 of the Laws of 1860, which provided that the railroad should be subject to the payment to the city of the same license fee annually for each car run thereon as was then paid by other city railroads in said city. In 1858 a city ordinance was passed which provided that:

“ Bach and every passenger railroad car running in the city of New York below One Hundred and Twenty-fifth street, shall pay into the city treasury the sum of fifty dollars annually, for a license, a certificate of such payment to be procured from the mayor, except the small one-horse passenger cars, which shall each pay the sum of twenty-five dollars annually, for said license, as aforesaid.”

After said ordinance was passed and from then until April 17, I860, and for many years thereafter the city railroads in said city ran two classes of cars, to wit, a class of cars drawn by two horses and which were in length about sixteen feet and both the front and rear platforms were used by passengers, and another class of cars usually drawn by one horse, in length about twelve feet and one foot narrower between the benches, and which had their front platforms closed, and never used by passengers.

These latter cars were commonly known and spoken of as small, one-horse passenger cars. From January, 1859, until some years after April 17, 1860, and down to the day of this submission, the city railroads in said city other than the road referred to in said act of 1860 and thereby authorized to be run, have paid .annually license fees, into the city treasury on each of the large two-horse cars such as above described run by them the sum of •fifty dollars each, and on each of the smaller passenger cars such as above described, whether drawn by one or two horses, the sum of twenty-five dollars. Subsequent to April 17, 1860, and until the year 1881 all the cars run upon the defendant’s road were of the dimensions and capacity of the smaller passenger cars above ■described, and were as a rule drawn by one horse, and, never paid for any of such cars any greater license fee than twenty-five dollars a year. In the year 1881 this defendant being then the lessee of said railroad and engaged in operating the same or a portion of the same, commenced to have said smaller cars run by it which had theretofore as a rule been drawn by one horse, drawn habitually by two horses, and all of the cars above mentioned were of the dimensions and capacity of the smaller passenger cars above ■described and were in fact the same cars which had theretofore been run and drawn as a rule by one horse only. The plaintiff claims that these cars were subject to an annual license fee of fifty dollars when drawn by two horses, and the defendant claims that said cars were subject to a license fee of only twenty-five dollars when drawn by two horses; and the question submitted is whether the defendant is liable to pay the higher license fee.

We think that clearly no such obligation rests upon the defendant. The license fee in the resolution above referred to seems to be predicated upon the size of the cars run. It provides that ■each and every of such railroad cars running in the city of New' York below One hundred and twenty-fifth street shall pay into "the city treasury fifty dollars annually for a license, except the small one-horse passenger cars, which shall each pay the sum of twenty-five dollars annually for said license.

Therefore a car which was known at the lime of the passage of this ordinance as a one horse passenger car was subject to the payment of a license fee of $25 only, even though it might be drawn ~hj more than one horse.

It appears from the case that there was a style of car commonly known and spoken of as small one-horse passenger cars; and it is the cars which are taxed and not the motive power. It is immaterial in the consideration of the ordinance as to how the cars are moved, provided they are of the character commonly known as small one-horse passenger cars. These are the cars which were intended to be excepted, naturally because of their less capacity to carry passengers, and consequently less ability to pay the larger license.

Judgment should therefore be rendered for the plaintiff for $5,175, and interest on $1,075 thereof from June 1, 1881,- on $1,000 from January 1, 1882, on $1,000 from January 1, 1883, on $1,000 from January 1, 1884, and on $1,100 thereof from January 1, 1885.

Barrett and Daniels, JJ., concur.


author: Lambert, J.—Counsel

text:
    Washington H. Taylor, App’lt, v. Catherine Taylor and Margaret Barnes, Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    Bar—Former adjudication.
    Plaintiff brought action alleging that defendant during a certain period embezzled large sums of money belonging to him and invested the same in certain premises. The court found that defendant did not embezzle large sums of money or invest the same. Held, that the gravamen of such action was the wrongful taking of the money, and that the judgment rendered therein was a bar to a subsequent action alleging embezzlement of large sums of money during the same period and the investment thereof in other premises.
    Appeal from a judgment overruling demurrers to the several answers of the defendants.
    The complaint in the prior action between the parties set forth,, in substance, that between the 23d day of June, 1879, and the 3d day of February, 1883, the defendant unlawfully and wrongfully took and embezzled large sums of money, the property of the plaintiff, and without his consent invested the sum of about $15,-000 in the purchase of a house and lot in West Thirty-third St., in the city of Mew York. By appropriate and sufficient allegations the plaintiff sought, as a part of his remedy, to recover the title to the real estate alleged to have been purchased by the moneys charged to have been embezzled. The court, upon the trial of the issues joined, among other things, decided as matters of fact, that the defendant did not, during the period alleged, take and embezzle large sums of money, the property of the plaintiff, or invest the same, and dismissed the complaint upon the merits. In the case at bar the plaintiff, for his cause of action, alleges that the defendant during precisely the same period mentioned in the former complaint unlawfully and wrongfully took and embezzled large sums of money, the property of the plaintiff, to wit, the sum of about $40,000, and used the sum of about $16,000 thereof .in the purchase of a house and lot on the southerly side of Bond street, in the city of Mew York, and for relief asks that the title thereof be decreed to be vested in him. The defendants set up the former judgment in bar of this action, to which the plaintiff demurs. The trial court decided, as matter of law, that tile findings and judgment in the former case operated as a conclusive barrier to the alleged cause of action. From the judgment entered upon such decision this appeal is taken.

      Noah Davis and Chas. Wehle, for app’lt; William Fullerton and Benj. Scharpe, for resp’ts.
   Lambert, J.—Counsel

for the appellant concedes the rule that every material question of law or fact involved in the issue in the former action must be regarded as determined by the final judgment in that action, and cannot he made the subject o£ judicial investigation in this case, but claims that the plaintiff in either case was but pursuing a remedy in the nature of an action in rem; that the judgment sought in the respective actions was the determination of title to distinct and different parcels of land and that, therefore, as a necessary conclusion, the finding, hy the court that the defendant’s wife did not between the 23d day of June, 1879, and the 3d day of February, 1883, embezzle large sums of money of the plaintiff was not the determination of a material or indispensable fact to the plaintiff’s right of action. To this proposition we cannot lend our assent.

The gravamen of the complaint was the wrongful taking of the money, and whether it was invested was immaterial so far as the right •of action for the money was concerned, and simply because the plaintiff sought to pursue the avails of the money wrongfully taken as a means of restoration instead of relying upon a judgment for damages could not deprive the case of the fundamental elements upon which his right of action was based. Upon the theory that the moneys invested were his, an equity would be established in the land in his favor as between him and the wrongdoer, and for the purpose of affording relief as against the wrongdoer the court, by legal requirement, would adjudge the title to be in him. The investment of the moneys by the defendant did not create a cause of action independent of the wrongful taking, and the allegation respecting the investment was immaterial except for the purpose of reaching the property as a means of redressing the injury resulting from the wrongful taking of the money. It follows, as a necessary result, that the allegation of embezzlement was not only an indispensable fact to be alleged and proven to sustain the action for the recovery of the land, but was the foundation' for the support of the judgment demanded. It was, therefore, one of the issues litigated by the parties upon the former trial, and is ■conclusive as a bar to this action within the rule established by the case of Lorillard v. Clyde, 122 N. Y, 41; 33 St. Rep., 303, and the cases cited. It is there held that a defeated party is concluded from litigating the issues upon which a judgment upon the merits is rendered, and every other matter directly at issue by the pleadings which the defeated party might have litigated.

The conclusion reached necessarily disposes of the suggestion made by the learned counsel for the appellant, that the only moneys in controversy in the former action were those invested in the purchase of the Thirty-third street property, and that, therefore, the judgment entered upon the finding that the defendant did not embezzle large sums of money does not preclude the plaintiff from showing that other moneys wrere embezzled by the defendant and invested in lands on Bond street. The principal issue in either case being whether or not the defendant did embezzle large sums of money, as the basis of his action, the finding by the court that the defendant did not embezzle large sums of money and the judgment entered thereupon becomes final upon that issue, within the rule stated in the case cited, that the defeated party is concluded by all the issues which might have been litigated, and we may assume that had the plaintiff established the fact that the defendant did embezzle moneys of the plaintiff other than those in the Thirty-third street property, the court would have so found, and the judgment entered in the action upon such findings would have saved this action from the conclusive operation of that judgment.

The judgment should be affirmed, with costs.

Daniels, J., concurs.


author: Ingraham, J.

text:
    Lewis Sanders, Pl’ff, v. Agnes Gordon Soutter et al., Individually and as Ex’rs, Def’ts.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    IExectttors and administrators—Assignment on interest in estate— Release by assignor.
    The administratrix of an heir to an estate assigned her interest therein, the assignee executing a paper by which he agreed to take from the fund when realized the amount advanced as consideration by him and to return the balance to her, and plaintiff holds under an assignment of such assignee’s interest in such transfer. Held, that such assignment was as security for the amount so advanced, and so far as such amount was concerned the assignor had no power to release the executors of the estate; but that she had a right to release the estate from all claim as to her interest therein over and above such amount, except so far as it was necessary to enforce plaintiff’s claim.
    Appeal from judgment entered "upon decision of the court at ■special term.

      Lewis Sanders, pl’ff in person; Delos McCurdy, fordef’ts.
   Ingraham, J.

This action was brought to compel the executors of James T. Soutter, deceased, to account as such executors and to have a certain release executed and delivered by the defendant d’Auxy to the executors of the estate of James T. Soutter set aside and vacated and that plaintiff’s interest may be ascertained and satisfied.

On the trial before the court at special term judgment was entered setting aside as void the settlement and release made by defendant d’Auxy, both individually and as administratrix with the will annexed of Bobert Soutter, deceased, so far as to enable plaintiff to recover the sum of $2,550, with interest and costs.

From this judgment the plaintiff and the defendants (the executors of James T. Soutter deceased) appeal to this court.

The appeal of the defendants will be first considered.

On the former trial of this case the action was dismissed upon the pleadings, which dismissal was affirmed by this court, but reversed by the court o£ appeals. 126 1ST. Y., 193 ; 37 St. Bep., 1.

It was there held that the allegations of the complaint were sufficient, by reasonable inference and deduction, to inform the court that the plaintiff, by the assignment made, took an interest in the estate of James T. Soutter; that the release constituted an impediment- to his proceedings in the surrogate court to compel an accounting of the executors of such estate ; that the complaint alleged a cause of action in favor of the plaintiff to set aside such release and to reinstate the proceedings for an accounting, and that the court having obtained jurisdiction for the purpose of setting aside such release would then proceed to decree a complete administration, settlement and distribution of the entire estate if necessary to enforce the plaintiff's right.

On this trial an assignment, as alleged in the complaint, was proved, and the court found that the release executed by defendant d’Auxy to the defendants as executors was fraudulent and void as to plaintiff.

Applying the decision of the court of appeals, before referred to, we think that the plaintiff was entitled to the judgment granted by the court below.

The allegations of the complaint, which the court of appeals held set forth a good cause of action against the executors of the estate of Soutter for an accounting, were substantially proved on the trial, and the judgment rendered for the plaintiff is in accordance with such decision. The judgment on the appeal of the defendants must, therefore, be affirmed, without costs.

We think also the appeal by the plaintiff from the judgment as entered must 'also fail.

The plaintiff claims as assignee of an interest in the estate of James T. Soutter from the defendant d’Auxy.

This assignment was to one Cranston, and recited that it was in consideration of the sum of $2,550, and assigned and transferred to said Cranston all the assignor’s right, title and interest acquired by her under the last will and testament of her husband, Bobert Soutter, deceased, together with any and all claims which she held against said estate, either as legatee, devisee or next of kin, except household furniture.

Contemporaneously with the execution of this assignment, Cranston executed a paper addressed to the defendant d’Auxy which recited the assignment and then contained the following provisions: “ I hereby promise and agree that from out of the moneys realized from the sale of any said interest or from that realized from the determination or settlement of any or all of said actions or suits mentioned, I will Erst take and reserve therefrom the full sum of $2,550 with interest, together with any and all expenses which I may have incurred relative thereto, the balance to be given to you or your order, and all of such interests remaining undisposed of after I am fully reimbursed to be transferred to you.”

And the assignment by Cranston under which plaintiff claims was of all Cranston’s right, title and interest in and to the bill of sale and defeasance,both of which were annexed to such assignment.

These two instruments, viz : the bill of sale and the defeasance, considered together, establish that the transfer to Cranston was as security for the repayment of the sum of $2,550, and interest and the expenses which he, Cranston, had incurred, and it was this right to resort to the claim against the Soutter estate to repay the amount due that was assigned to Cranston, and that passed under the assignment by Cranston to Amend and by the assignment of Amend to plaintiff. The plaintiff holding this right to recover from the estate sufficient of the interest of the defendant d’Auxy to repay the amount due to Cranston, the defendant d’Auxy had no power to release the executors of the estate without the consent of Cranston or his assignee, and plaintiff is interested in the estate to an amount necessary to repay to Cranston or his assigns the amount .for which he was entitled to hold such claim as security. For all her interest in the estate over and above such amount due to Cranston she had the right to release the estate, and except so far as it was necessary to enforce the plaintiff’s claim to release or discharge the estate from any claim that she had against it.

The release, therefore, was a bar to any recovery by Cranston or his assigns, or by the plaintiff as assignee of the defendant d’Auxy, by assignments after the execution of such release, except so far as it was necessary" to protect the right held by Cranston under the assignment, and which had been transferred to the plaintiff, and the judgment as granted in this case provides for the payment by the executors of the amount due to plaintiff as assignee of Cranston, with costs.

We do not think that the plaintiff is entitled to any more favorable judgment than that granted by the court below on the appeal of the plaintiff.

The judgment is affirmed, without costs.

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


text:
    George Mundorf, Resp’t, v. The New York Elevated R. R. Co. et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    Railroad—Elevated—Evidence.
    In an ordinary action to restrain defendants from maintaining and operating an elevated railroad, it is error to admit evidence tending to show danger from fire to premises bordering on the road caused by defendant’s negligence. It is only the ordinary damages or risks not resulting from negligence that can be taken into consideration in estimating damages to the land.
    Appeal from judgment entered on report of referee.

      Davies, Short & Townsend,for app’lts; É. A. Hibbard, for resp’t.
   Van Brunt, P. J.

This action was the ordinary equity action to restrain the defendants from maintaining and operating their railroad in front of the plaintiff’s premises, No. 724 Ninth avenue.

It seems to us that a fatal error was committed in the admission of testimony upon the trial of this action. A witness who had formerly been a tenant of No. 742 Ninth avenue, a building at a considerable distance from the one in question, was asked: “Do you know about the old frame house catching fire? A. Yes, sir. Q. How did it catch fire?” This question was objected to and admitted under exception. The witness then answered as follows: “A. "Well, it was in the summer time, about.the 5th of ■July, and I couldn’t say whether it was from the sidewalk or the elevated station, or whether there was something thrown in through the windows. I couldn’t tell whether it was from the station or not, but I know it was right in the locality of the station; but I couldn’t say whether it was from the walk or the station. The fuse of whatever it was came into the bed-room and set fire to the bed-room ; I was in bed in the other room at the time; I don’t know what it was or where it came from; the room was set on fire, anyway, whether it was mischievous boys or not; this was on the floor above the store; it was a bed-room for the children; it was used for a part of my family; but whether it was a firecracker that set it on fire or not, I don’t know.”

The admission of this question seems to have been entirely unjustifiable because there was no allegation in the complaint of negligence in the manner in which the defendants managed their railroad, and there being nothing in this proceeding by which, the plaintiff could compel the defendants to pay for the right to negligently cast fire towards the plaintiff's premises in the future, there was no such element of damage to be ascertained in determining the value of the easement in question. And furthermore it was evidence in respect to other premises than those in question..

If it be said that the answer was indefinite as to the cause from which the fire came, it is sufficient to say it is impossible for us to-determine whether the referee was of the opinion that the fire came from the elevated road or not. He deemed it important to-show that other premises had been endangered by the negligence of the company in the management of their road, and that the-danger of setting on fire the premises bordering on the road was a fact to be taken into consideration in determining the measure-of damages.

It is a familiar principle that in proceedings of this character the damages which may possibly result from the negligent or unskillful operation of the road must be excluded from consideration. Such damages may never be sustained, and if they did occur the party aggrieved may have an independent remedy therefor.

It is only the ordinary damages or risks not resulting from negligence that can be taken into consideration in estimating damages to the land only.

The judgment must be reversed and a new trial ordered before-another referee, with costs to appellant to abide event.

Daniels and Barrett, JJ., concur.


text:
    James S. Hart, App’lt, v. William L. Washburn, Ex’r, et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    1. Default—Motion to open—Bab.

      The fact that a motion to open a default has Been denied is no bar to a subsequent motion for the same relief, where the judge who denied the former motion grants the order to show cause. This is equivalent to granting leave to renew, if such leave was necessary.

      2. Same—Tebms.
    Where the action was of a character which would abate by the death»of the defendant and there has been a long delay in renewing the motion, the judgment should be permitted to remain as security to protect the plaintiff’s rights, and he should not be required to accept in lieu thereof an undertaking to pay any judgment which ho might eventually recoven

      Appeal from order opening a default.

      W. & Andrews, for app’lt; Horace 6r. Wood, for resp’ts.
   Van Brunt, P. J.

This action was commenced in April, 1885, against one Richardson as trustee of a corporation organized under the laws of the state of New York, because of failure to file the annual report required by law.

The defendant in the action obtained various extensions of time to answer, and before the expiration of the last extension, the plaintiff’s attorney died. In 1886 the present attorney for the plaintiff was substituted in place of the deceased attorney, and judgment was entered by default against the defendant for the amount claimed, interest and costs. A motion was subsequently made to open the default on behalf of the defendant and this motion was denied, and a copy of the order denying the motion and notice of the entry thereof was served upon the defendant’s attorney. No appeal was taken from that order, and no request for leave to renew the motion was ever made.

In February, 1887, another attorney was substituted for the defendant herein. The defendant moved again to open the default, upon an order to show cause granted by the judge who had previously denied the motion. This second motion was granted, and the default was opened upon condition that the judgment stand as security unless the defendant file an undertaking conditioned for the payment of any sum the plaintiff might recover in this action, and from the order thereupon entered this appeal is taken.

We think upon an examination of the record that the court in its sound discretion was justified in allowing the defendant to litigate the claim presented by the plaintiff. The fact that the motion had been previously denied was no bar to the present motion, the learned judge who denied that motion having granted the order to show cause, which was equivalent to granting leave to renew if such leave was necessary.

But we think that the rights which the plaintiff had acquired by reason of the judgment which had been entered should, because of the long delay which had taken place between the denial of •the motion to open the default and the renewal of the same, have been completely protected. The action was of a character which abated by the death of the defendant Although the order opening the default provided that the judgment should remain as security, it was accompanied with the alternative that the defendant might file an undertaking with two sufficient sureties for the payment of any sum which the plaintiff might recover in this action against the defendant

This compelled the plaintiff to take the risk of the life of the defendant after he had secured his claim by judgment. This we think was error. He was entitled to be secured in the rights which he had acquired by the entry of such judgment; and although the defendant might be permitted to litigate the question as to his liability, the plaintiff should not be compelled, in addi- ' tian to the obligation of proving his case against the defendant,, also to insure-his life in order that he might recover.

We think, therefore, that the order should be reversed, with leave to the personal representatives of the defendant to move to-be allowed to defend, and the court will then make such an order as will protect the rights of the .plaintiff, with ten dollars costs of this appeal and disbursements to abide the final event of the action.

■ Patterson, J., concurs.