author: GILBERT, J.:

text:
    ANGELINA REEDER, Administratrix, and GEORGE A. REEDER and LYMAN REEDER, Administrators of JAMES M. REEDER, Deceased, and JAMES H. REEDER and LYMAN REEDER, Respondents, v. JOB SAYRE, Appellant.

      Statute of frauds — 2 B. 8., 135, §§ 2, 8, 9 — pwol lease for mon'e than one yeas' — affect of.

    The provision of the Revised Statutes avoiding every agreement not to be performed in one year does not apply to contracts for the leasing of lands.
    Although a parol lease for more than one year is void, yet it enures as a tenancy from year to year, and regulates the terms of the tenancy in all respects, except as to its duration.
    Plaintiff leased by parol certain land from one T. for two years from April 1, 1871, with the privilege of raising two crops of wheat. In June, 1872, while plaintiff was in possession of the land, T. sold it to defendant, who notified plaintiff he would need it April 1, 1873. In the fall of 1872 plaintiff sowed a crop of wheat, which was harvested by defendant in the summer of 1873, and converted to his use. Eeld, that plaintiff was entitled to the wheat, and that the defendant was liable to him therefor.

      Appeal from a judgment in favor of the 'plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon a case and exceptions.
    The action was trover to recover the value of a quantity of wheat alleged to have been converted by the defendant, of which the complaint avers James M. Reeder, deceased, and the respondents, James H. and Lyman Reeder, were the owners and in possession as tenants in common.
    In the spring of 1871, the plaintiffs, James H. and Lyman Reeder, in conjunction with their father, James M. Reeder, as partners, made a parol contract with one E. Darwin Tuthill to lease of him his farm of about 120 acres, situated in Starkey, for the term of two years from the said 1st day of April, 1871, with the privilege of two crops of wheat, at a yearly rental of $500.
    On the 1st day of June, 1872, E. Darwin Tuthill entered into a written contract with the defendant, whereby he sold the said farm to the defendant, Tuthill thereby agreeing to give to the defendant a warranty deed of the farm free from incumbrance, and possession thereof on the 1st day of April, 1873, and in pursuance of the contract he executed the deed, and defendant took possession of the farm.
    A few days after the defendant made the contract for purchasing the farm, and before any preparation had been made to prepare the ground or sow the crop of wheat, the defendant, ascertaining that the Reeders claimed the right to sow the crop of wheat, served a notice forbidding the sowing thereof, and that he should require full possession on the 1st day of April, 1873.
    The crop of wheat for which the action was brought was sowed in the fall of 1872, the ground being prepared in September of that year.
    James M. Reeder died June 3, 1873, before the wheat was fit to be harvested.
    In July, 1873, the defendant commenced harvesting the crop of wheat. The Reeders forbade him, and claimed it. The defendant finally drew it into his barn against their remonstrances, thrashed it, and held it to be his property.
    At the close of the evidence counsel for plaintiffs moved the court to direct a verdict in favor of the plaintiffs, which was granted, and the defendant excepted.

      Charles 8. Baker, for the appellant.

      J. McGuire, for the respondents.
   GILBERT, J.:

It may be assumed as settled law in this State: 1. That the provision of the Revised Statutes (2 R. S., 135, § 2, sub. 1), which avoids every agreement that by its terms is not to be performed in one year, does not apply to contracts for the leasing of lands. (Young v. Dake, 1 Seld., 464; overruling Croswell v. Crane, 7 Barb., 191.) And 2. That a parol lease for more than one year, though void for the term, by reason of another statute (2 R. S., 135, §§ 8, 9), enures asa tenancy from year to year, and that the oral lease regulates the terms of the tenancy in all respects except its duration. In this case, the lease was valid only for one year from April 1st, 1871, yet the tenants having actually entered under the lease, and having continued in the occupation of the demised premises after that time, with the assent of the lessor, a valid tenancy for another year was created. (Schuyler v. Leggett, 2 Cow., 660; People v. Ricker, 8 id., 226; Lounsbery v. Snyder, 31 N. Y., 514.) By the terms of the parol agreement in this case, the tenants became entitled to sow a crop of wheat in the fall of 1872, and to reap it the following season. They sowed the crop accordingly, and we are of opinion that they had a right to reap it and carry it away. The privilege of sowing the crop was exercised by the tenants as such, with the sanction and assent of the lessor.' These facts are sufficient to establish a new contract, or that which is equivalent thereto, whereby the grant of the privilege made by the original agreement was renewed. (Like v. McKinstry, 41 Barb., 191; S. C., 4 Keyes, 397.) The invalidity of the original demise, is no objection to the new contract. The case of Dung v. Parker (52 N. Y., 594), does not affect this principle, and the principle is supported by the case of Harris v. Frink (49 id., 24).

The defendant took his conveyance, with notice of the right to take off the crop claimed by the tenants, and it was subject to that right for obvious reasons. It is immaterial to inquire whether he had such notice when he entered into the executory contract for the purchase of the land. The right of the tenants was vested, and not a mere revocable license; the defendant acquired by virtue of the contract, no greater interest, than his vendor could then sell. We entertain no doubt that the judgment should be affirmed.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Judgment and order affirmed.


source: Caselaw Access Project

author: Gilbert, J.:

license: Public Domain

text:
    CHARLES HARRISON, as Survivor of Himself and JAMES JONES and HENRY JONES, Appellant, v. WILLIAM R. UTLEY and ANDREW J. WILKIN, Respondents.

      Undertaking in replevin — consideration — estoppel.

    No consideration is necessary to support an undertaking given upon a claim for the delivery of personal property, pursuant to the Code, besides the claim itself. Certain property claimed by A was in the possession of B. In order to settle the dispute as to its ownership, it was agreed that B should bring an action claiming the delivery of the property. Accordingly an action was commenced and an undertaking was given, signed by the defendants in this action, conditioned for a return of the property or the payment of its value, the possession of the property by A being admitted by stipulation. None of the formalities required by the Code were complied with. The action in replevin having been decided in favor of A, he instituted this one upon the undertaking, the validity of which was denied by the defendants on the ground that it was without consideration. Held, that no consideration was necessary to support the undertaking, and that the defendants were estopped from disputing its validity.
    Appeal from a judgment in favor of the defendants, entered upon the trial of this action by the court, without a jury.
    The action was brought upon an undertaking, in an action of replevin, brought by the Rochester Water-works Company against the plaintiff and his late partner. By this undertaking the defendants agreed that the Rochester Water-works Company, the plaintiff in that action, would return the property involved in that action, 90,000 pounds of cast-iron water pipe, if a return should be adjudged, and pay to the defendants in that action such sum as might, for any cause, be recovered against said plaintiff. The action, in which such undertaking was given proceeded to judgment in favor of the defendants therein, adjudging a return of the pipe to the defendants, or in ease it could not be- had, that they -recover of the plaintiff its value, $2,447.60, and costs of the action, $301.83.
    An execution was issued upon this judgment, which was returned unsatisfied.
    It appeared that, on the 9th of January, 1869, Messrs. Jones & Harrison recovered a judgment against Alexander Easton for $1,842.89, upon which an execution was issued, and the pipe involved in the replevin action was purchased by them. The pipe was claimed by the Water-works Company at the time, and it was agreed between the engineer of the company and Mr. Siddons, who represented Jones & Harrison, that it should remain upon a vacant lot, where it then was, and not be disturbed by either party without notice to the other. Subsequently the pipe was removed and laid by the company. The attorney of Jones & Harrison was about to take measures to recover the pipe when it was suggested that the Water-works Company should commence an action against Jones & Harrison, claiming the delivery of said pipe; and thereupon, and on or before July 7th, 1870, Mr. Bacon, as the attorney for the company, delivered to the attorney for Jones & Harrison the summons and complaint in the action, which resulted in the judgment and the undertaking on which this action was brought, and a stipulation fixing the value of the property and admitting that the defendants (Jones & Harrison) took possession of the same, and that the same was actually in their possession at the time of the commencement of the action. These papers were submitted to Jones & Harrison who instructed their attorney to appear for them in such proposed action, and adopted such proceeding, in lieu of proceedings on their part to recover the pipe.

      W. F. Cogswell, for the appellant.

      H. B. Selden, for the respondent.
   Gilbert, J.:

No consideration is necessary to support an undertaking given upon a claim for the delivery of personal property pursuant to the Code besides the claim itself. That is sufficient to uphold the validity of the undertaking. (Bildersee v. Adin, 12 Abb. Pr. [N. S.], 324, and cases cited.) Nor is it necessary that the undertaking should express a consideration. (Oases, supra / Laws of 1863, chap. 464.) In all cases the undertaking must accompany the claim, and it becomes an effectual instrument before there has been a delivery of the property. In this case the property in dispute consisted of iron water pipes belonging to the plaintiff which the Rochester Water-works Company had laid down in the streets of that city. The plaintiff, being about to take proceedings to recover the possession'of the property, the Water-works Company treated it as in the actual possession of the plaintiff, and brought an action against him to recover the possession thereof. The undertaking in question was given in that action, and the possession of the property remained undisturbed. The formal proceedings, prescribed by the Code when a delivery is claimed in an action to recover the possession of personal property, were omitted. The'object of such omission evidently was to obtain a determination of the ownership of the property without the expense and injury which would necessarily have attended an actual transfer of the possession thereof, first to one party and then to the other. The court below held that this omission destroyed the character of the instrument ás a statutory undertaking, and that it was void for lack of consideration to support it.

We are of opinion that the court erred. It was competent for the parties to the action to waive the useless formality of a double replevy. They did so, and the rights and interests of the sureties in the undertaking were in no degree affected thereby, except that their liability was diminished by the saving of fees and expenses of the sheriffs which would have been incurred upon an actual replevy. The case does not show that any different result would have followed an actual replevy, than that which was accomplished by omitting it. The undertaking, on its face, purports to have been given in an action brought by the Water-works Company against the plaintiff in this suit. It recites a claim for the delivery of the property of the company, and the' defendants undertake that the company shall return the property to the plaintiff in this suit, in ease a return shall be adjudged. We think these facts estop the defendant from denying' that the property was claimed by the company, or that it was taken out of the possession of the plaintiff in this suit and delivered to the company. (Coleman v. Bean, 1 Abb. Ct. App. Dec., 394; 12 Abb. [N. S.], supra.) Such facts also constitute an ample consideration for the undertaking, if one is necessary.

The case contains no finding respecting the discharge in bankruptcy of the defendant Utley. That subject, therefore, is not before us.

Eor the error stated, the judgment must be reversed and a new trial granted, with costs to abide the event.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Ordered accordingly.


text:
    JOHN KLEINHENZ, Appellant, v. AUSTIN A. PHELPS and others, Administrator, Impleaded, etc., Respondent.

      Judgment — satisfaction of — sale of life estate — termination of such estate before entry of purchase}-.

    Where the sheriff sells, under an execution, the only property owned by the judgment debtor, viz., a life estate in certain land, which estate is purchased by the judgment creditor for the amount due him, such purchase operates as a satisfaction of the judgment, even though the judgment debtor die, and his estate terminate, before the purchaser is entitled to enter upon the land.
    Appeal from an order of Monroe Special Term, sustaining a demurrer to the complaint.
    The complaint alleged that the plaintiff obtained a judgment against one Zelah Stowell, in his lifetime, and caused an execution to be issued and levied upon the life estate of said Stowell, in certain lands therein mentioned, which was claimed to be the only property of said Stowell subject to execution, and caused said life estate to be sold on said execution, and became the purchaser thereof at the sale for the full amount of his judgment, interest and costs, and accepted and received the sheriff’s certificate of sale of said property, and said execution was returned satisfied. Subsequently, and about two months thereafter, said Stowell died, whereupon the plaintiff brought this action', in the nature of a creditor’s bill, praying that the satisfaction of said judgment be set aside and vacated, that said judgment be revived and declared a just and valid debt against the estate of said Stowell; that the said administrators be required to pay the same out of the personal property belonging to said estate, and that in case sufficient personal property could not be found, then that the same be declared a lien upon several pieces of real estate, conveyed by said Stowell, in his lifetime, to the other defendants, reserving to himself the life estate hereinbefore referred to, on the ground that said conveyances were void as to creditors.
    To this complaint the defendants, Austin A. Phelps and Harriet N. Stowell, interpose a demurrer, on the ground that same does not state facts sufficient to constitute a cause of action against said defendants, said administrators, and the case having been brought to trial, an order was made sustaining said demurrer, with leave to plaintiff to amend within twenty days, on payment of costs.

      J. O. Ghumasero, for the appellant.

      J. E. Roe, for the respondents.
   Gilbert, J.:

The death of the judgment debtor was a great misfortune to the plaintiff, but that furnishes no ground for relieving him from the legal consequences of his purchase at the execution sale. He got the thing he bought, namely, a right to have the estate of the judgment debtor conveyed to him, at the expiration of fifteen months from the time of the sale thereof, provided the premises sold should not be redeemed from the sale, and in case of redemption, to receive the amount for which the premises were struck down to him, with interest thereon at the rate of ten per cent. A present title in possession was not sold. On the contrary, the statute relating to sales of real estate under execution, provides that the right and title of the person, against whom the execution issued, to any real estate which shall be sold thereby, shall not be divested by such sale, until the expiration of fifteen months from the time of such sale, but if such real estate shall not have been redeemed as therein provided, and a deed shall be executed in pursuance of such sale, the grantee in such deed shall be deemed vested with the legal estate from the time of the sale on such execution, for the purpose of maintaining an action for any injury to such real estate. (2 R. S., 373, § 61.) If, at the' expiration of fifteen months from the time of sale, the premises have not been redeemed, the purchaser becomes entitled to a conveyance from the sheriff which the same statute declares “ shall be valid aud effectual to convey all the right, title and interest which was sold by such officer.” (Id., § 62.) If, therefore, the judgment debtor had lived, the plaintiff would, by virtue of his purchase, have been entitled to receive either a conveyance of the estate sold, with the effect stated, or the amount of his bid with the interest thereon, which must have been paid as a consideration of redemption. For that right he bid at the execution sale the whole amount of the judgment, and the sheriff, in accordance with his imperative duty, returned the execution satisfied. It was, in fact and in law, satisfied. (Russell v. Allen, 10 Pai., 254 ; Forsyth v. Clark, 3 Wend.. 637 : Weaver v. Toogood, 1 Barb., 238.) A purchaser of a life estate, whether at a private sale or a public one on execution, necessarily acquires only an interest terminable by the death of the life'tenant. No one can foresee how long such an interest will continue. It may last many years, and so its value may turn out to be far greater than that put upon it when sold. It may end in a day, and so turn out to be wholly valueless. In either case the purchase must be upheld and enforced according to its terms, for the reason that neither seller nor purchaser were deceived respecting the thing actually sold, and the fact that one of them has been disappointed in his expectations, by an event that occurred after the sale, in no sense operates retroactively to limit or impair the legal effect of the transaction. The sale of the estate of the judgment debtor for the full amount of the judgment, in the manner provided by law, operated as a payment and satisfaction of the judgment. The relation of creditor and debtor, which, before the sale, subsisted between the parties, was terminated thereby, or rather, was changed into the new one created by the statute before referred to. It is no answer to say that the benefit of the plaintiff’s purchase was cut off by the death of the owner of the life estate which he bought. That result was incident to the nature of the estate purchased. It was a legal estate of freehold (1 B. S., 722, § 5), and was a proper subject of sale on execution. (Code, §§ 289, 462.) The uncertainty of the duration of the estate, and its actual termination before the period of enjoyment in possession arrived, therefore, do not affect the validity of the plaintiff’s purchase, or render it less binding upon him. He must be presumed to have purchased with reference to that uncertainty, and has no just cause of complaint, either in law or in equity, because the estate, which he purchased with his eyes open, terminated sooner than he expected it would. There having been no unfairness in the sale, he ought in justice to be held to his purchase. The case of Ladd v. Blunt (4 Mass., 402), we think is no authority for the proposition that, under our statute, a judgment is not satisfied by a sale of lands on execution, until there has been either a redemption of the premises sold, or a conveyance thereof to the purchaser, pursuant to the sale. That was a case where lands had been seized by virtue of process analogous to the English law of extent, and the process had not been fully executed. The lands of the debtor could not be taken, unless by the acceptance of the creditor, to whom seizin had to be delivered, and there was no return by the sheriff of such extent and delivery of seizin. Here the sale had been completed, and the .plaintiff acquired all the present rights, together with the future rights depending upon redemption by the judgment debtor or his other creditors, which resulted from the sale. If a third person had made the purchase, the'plaintiff would have received the amount of his judgment immediately after the sale, and such- purchaser would have been in the same position, in respect to the subject of the purchase, that the plaintiff is now in. The legal effect of the purchase by the plaintiff is the same, so far as the rights of the judgment debtor are concerned, as a payment to him by the sheriff of the amount bid at the sale, upon a purchase by another.

It follows that the judgment having been satisfied, the plaintiff cannot maintain this action.

The order sustaining the demurrer must be affirmed, with costs.

Present —Mullin, P. J., Smith and Gilbert, JJ.

Order affirmed.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. SARAH CONWAY, Appellants, v. THE BOARD OF SUPERVISORS OF LIVINGSTON COUNTY, Respondents.

      Chapter 156 of 1872 — -vests discretionary powev- in hoard of sup&r-mors.

    The relator constructed a bridge over a stream between two towns, in pursuance of a contract with the commissioners of highways of said towns. They having no power to make this contract, chapter 156 of 1872 was passed, which authorized the board of supervisors to adjust and audit the claims, and further provided “ the said board may allow to the said claimants respectively, so much for the work done and material furnished by them respectively, as the same was reasonably worth,” etc., held, that the statute was not to be construed as imposing a duty on the board of supervisors to exercise the power conferred by it. Such construction is to be given to such a statute, only when the public interests require it, or a party before the court is entitled by virtue of an antecedent right to have the power exercised for his benefit.
    Appeal from a judgment entered upon a decision of the court at Special Term, denying a peremptory mandamus to the defendants and dismissing the alternative mandamus, requiring them to cause to be levied, collected and paid over to the relator the sum of $5,500 and interest, or show cause to the contrary, etc. The following is the alternative writ:

      The People of the State of New Yorlc to the Board of Supervisors of Livi/ngton county, greeting:

    Whereas, The commissioners of highways of the towns of Geneseo and Leicester, in the county of Livingston, entered into a contract with one James Conway to construct a bridge over the Genesee river in said towns; and
    Whereas, Said James Conway did construct said bridge according to said contract, and the same was accepted by said commissioners, who thereupon executed and delivered to said James Conway their certificate certifying that there was due to him, the said Conway, the sum of $14,447.89 ; and
    Whereas, Said James Conway caused said certificate to be presented to said board of supervisors of Livingston county at a regular meeting of said board; and

      Whereas, Said board ordered the said amount to be levied and assessed by tax on said towns of Geneseo and Leicester; and
    Whereas, Said board have failed to levy or assess the same or to pay in any way such demand; and
    Whereas, No settlement having been made, the legislature of the State of New York, on the 1st day of April, 1872, passed chapter 156 of the Laws of that year in relation thereto, and thereupon the said board of supervisors audited and allowed the said claim at their first annual session thereafter at $5,500, but have not caused the same to be collected as provided by said act; and
    Whereas, Said James Conway, for value received, duly sold, assigned and transferred said demand to Mary E. Conway, who afterward, for value received, duly assigned and transferred the same to Sarah Conway, as we are informed by the affidavits of said Sarah Conway and James Conway.
    Now, therefore, we being willing that full and speedy justice be done in this behalf to her, the said Sarah Conway, do therefore command you that, immediately after the receipt of this writ, you cause to be levied, collected and paid over to the relator, Sarah Conway, the sum of $5,500 and interest, or show cause to the contrary before this court at the next Special Term thereof to be held at the court-house, in the city of Rochester, on the 26th day of October, 1874, lest complaint shall again come to us by your default; and in what manner you shall have executed this our writ, make known at our Supreme Court at the next Special Term thereof to be held at the time and place aforesaid.
    Witness, Hon. David Rumsey, justice of the Supreme Court at [l. s. ] Rochester, the 28th day of September, 1874.
    JOHN H. WILSON, Clerk.

    J. O. Cocheaste, Attorney.

    Chapter 156 of 1872, among other things, authorizes the board of supervisors of Livingston county, to adjust and audit the claims of Simon De Graff, James Conway and George W. Phelps, for constructing and repairing a bridge over the Genesee river between the towns of Geneseo and Leicester, and that “said board may allow to said claimants respectively, so much for the work done and materials furnished by them respectively as the same was reasonably worth,” etc.

      J. C. Cochrane, for the appellant.

      8. Hubbard, for the respondent.
   Gilbert, J.:

It is reasonably certain that the object of the act of April 1, 1872, was to give the defendants a discretionary power, and not to impose upon them a positive duty. This is shown as well by the language employed, as by the circumstances in which the claim of the relator originated. By the first section of the act, the defendants are authorized to audit and adj'ust the claim, and the second section provides that they “ may cause to be levied and collected upon the towns of Geneseo and Leicester such sum as shall be found necessary to pay the amounts allowed.” Before the passage of the statute, neither the county of Livingston nor the towns named were under any legal liability to the claimant. The claim was for building a bridge, under a contract with the commissioners of highways of both said towns, and they had no authority to enter into the contract on behalf of the towns. The construction of the bridge might have been a proper county charge if the work had been done under the authority of the board of supervisors. (Phelps v. Hawley, 52 N. Y., 23.) As that board had no power to audit or allow any but legal claims against the county, it was necessary for the relief of the claimant, that the legislature should interpose and confer upon the board additional power, namely, that of auditing and allowing a claim, which, however equitable and j'ust, was not a valid one, enforceable in a court of j'ustice. Hence the enactment of the statute of 1872, which in its terms is permissive and not mandatory. Such statutes are never construed as imposing a duty to exercise the power conferred by them, unless the public interest requires it, or a party before the court is entitled by virtue of an antecedent right, to have the power exercised for his own benefit, but will be so construed in order to enforce a right already existing. (Newburgh Turnpike Co. v. Miller, 5 Johns. Ch., 101; Mayor v. Furze, 3 Hill, 612; Baldwins. The Mayor, 2 Keyes, 410 ; Phelps v. Hawley, supra; People ex rel. Otsego Bank v. The Board of Sup. of Otsego, 51 N. Y., 401.) The appellant, however, contends, that the board having audited the claim, she acquired thereby a vested right to have the tax levied and collected for the payment thereof. If the foregoing views are correct, this position is untenable, for' the authority conferred by the act is entire; and the exercise of' one part of it does not, of itself, confer a right to demand the exercise of the other part. We are also of opinion that the proceeding which the appellant relies upon to constitute an audit, was not in fact such an absolute one, as has the legal effect of a final and conclusive audit or allowance of the claim. What the supervisors did, was to adopt a report of a committee of the board, recommending that a certain sum should be awarded to the claimant, on the condition, that it should not be levied or assessed until the claimant should have executed a bond to protect the county against any litigation which might grow out of the action of the board upon the claim, and a proper discontinuance of several pending suits. This condition has not been complied with; consequently, no effectual award or audit has been made. The return states the foregoing facts, and denies that the board of supervisors audited or allowed the claim. The demurrer admits the truth of the facts set forth in -the return. Without an audit the claimant is not in a position which entitles her to ask for a mandamus to compel the levying of the tax.

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

Present -— Mullin, P. J., Smith and Gilbert, J J.

Judgment affirmed.


author: Gilbert, J.: Smith, J., Merwin, J.

text:
    ZALMON CERTWELL, Plaintiff, v. SAMUEL HOYT, Defendant.

      Sedniction — right of grandfather to maintain action for.

    A. grandfather who, at the request of the deceased parents of an infant female, has assumed the obligations of .a parent in respect to her care and management, can maintain an action for her seduction, although she was living away from him in the service of the defendant, appropriating the wages received to her own use, at the time the injury occurred. (Merwin, J., dissenting.)
    Motion for a new trial, on exceptions directed to be heard in the first instance at the General Term, after a nonsuit ordered by the court.

      The action is brought by the plaintiff, for damages for the seduction by defendant of tjie plaintiff’s minor grandchild, and was tried at the Jefferson Circuit, in May 1874. Both parents of the child died when she was about a year old. The plaintiff, at the request of the child’s mother, before the mother’s death and subsequent to the death of the father, took her to take care of, and did from that time adopt and treat her as his own child, and she called the plaintiff and his wife father and mother.
    For about two years before the occurrence complained of, the girl had worked out at divers places, receiving her wages which were applied towards her clothing or other support. In June, 1873, she went to work for defendant, and was soon after, at his house, seduced by him and got with child. Before her confinement she returned to plaintiff’s house, and was there confined. "When she left the plaintiff to go out at work, she had the intention of returning, and did, occasionally, go back.
    At the close of the plaintiff’s evidence, the court granted a non-suit, on the ground that the plaintiff, at the time of the seduction, had not the right to command the services of the girl.

      W. Whiting, for the plaintiff.

      Q. II. Watts, for the defendant.
   Gilbert, J.:

This is an action for seduction. The plaintiff .is the grandfather of the female seduced. When seduced she was an infant eighteen years old. Her father died when she was fourteen months old, and her mother died two months afterward. Her mother, shortly before she died, requested the plaintiff to take the infant and take care of her. Accordingly the plaintiff brought the infant home, and she remained in his family as a daughter from that time onward until she became fifteen years old. She then began going out to service with the assent of the plaintiff, still, however, treating the plaintiff’s house as her home, and returning to it when not engaged elsewhere. At the time of the seduction she was in the defendant’s employment as a servant. • Her wages which she received for her services away from the plaintiff’s house were appropriated by her to her own use. At the trial the plaintiff was nonsuited. The question which we have to decide is, whether a grandfather who has assumed the obligations of a parent in respect to the care and maintenance of an infant female, can maintain an action for her seduction, although she was living away from him, and was in the service of the defendant, at the time the injury occured.

No doubt the father, or after his death the mother, of the infant might maintain the action under such circumstances. That has often been adjudged in favor of the father, and the rule, as to him, is conclusively settled. In Clark v. Fitch (2 Wend., 459), it was held that a father liable to a third person for the expenses of the lying-in of a daughter, who had been seduced, might maintain the action, although the daughter was the servant defacto of another, and the father had permitted her to leave his house, had relinquished all claim to her services, and had incurred no actual expense. In Mulvehall v. Millward (1 Kern., 343), a recovery by a father was allowed where the daughter left her father’s and went to work for the defendant, and was seduced by him while in his employment, and remained absent from home until after her confinement and recovery, and the father incurred no expenses on her account. The principle of these cases was emphatically approved in Gray v. Durland (51 N. Y., 424). The Court of Appeals has, also, recently established the same right in favor of the mother, after the father’s death. (Furman v. Van Sise, 56 N. Y., 435.)

This right is put upon the general ground that the parent is entitled to the services of the child, and the injury occasions a loss of that service; in other words, that the legal relation of master and servant subsists between them, and that for an injury to the servant, which disables her from rendering to the master that service which is his due, the master can recover. (Cases, supra.)

Persons, whether blood relatives or not, who stand in loco parenUs to the infant, with whom the infant lived at the time of her seduction, have the same right; e. g., an aunt (Manvell v. Thomson, 2 C. & P., 303), a step-father (Bracy v. Kibbe, 31 Barb., 273), and a foster-father. (Irwin v. Dearman 11 East, 23.) The principle of these eases is approved in Gray v. Durland (supra).

In Lampman v. Hammond (3 N. Y. S. C. [T. & C.], 293), the same right was accorded to a mother who had remarried. In England, however, if a daughter seduced did not, at the time of the injury, reside with her father, but was living away from home, in the service of another person, the father has no ground of action, unless the person with whom she was living inveigled her away from home, for the very purpose of seducing her. (Dean v. Peel, 5 East, 47; Blaymire v. Haley, 6 M. & W., 55; Thompson v. Ross, 5 H. & N., 16.) But this rule has been exploded in this State. (Mulvehall v. Millward, supra.) Whether absence in the service of another bars the right of recovery of persons who are not parents, but merely stand in loeo parentis to the infant, has not yet been determined in this State, to my knowledge. That is really the question before us. The case of Bartley v. Richtmyer comes nearest to an adjudication of that question, but is not in point. The plaintiff in that case was the stepfather of the female seduced. He had discarded her, and she had left his house without, as the court assumed, any animus revertendi. He did not, therefore, stand in loeo parentis to her. The right of the plaintiff to maintain the action, if the infant female had been a member of his family at the time of her seduction, being established, did such right continue while the infant was away from home in the service of the defendant ? Why should it not, as well as that of a father and of a widowed mother % It is said that the right of a grandfather,' who, upon the death of both parents of the infant, has stepped into the father’s place, and assumed all his .duties and obligations, ceases when the infant leaves his house and engages in the service of another. We cannot assent to that. Viewed in the light of justice and common sense, his right is certainly as strong as that of a widowed mother. The same considerations which support the right of one are equally cogent to maintain a claim of the same right by the other. Indeed, I can imagine no sufficient reason for applying to the plaintiff, who became practically a father by his adoption of the infant, any different rule in an action of this kind than would have been applied to the natural father himself. The only reason suggested is, that the plaintiff has no legal right to the services of the* infant, because he is under no legal obligations to provide for her care and maintenance. He may not be under the same obligations to the State, but we are not willing to concede, that he is not quoad the infant herself. But the better answer is, that the right of the natural father to the child’s services is founded, not upon a positive legal obligation to furnish her with care and maintenance, but solely upon his duty as a parent to do those acts. The father’s right to the services of his child has always been recognized and enforced by the common law, although by the same law no positive legal obligation was imposed on the father to maintain the child, but that duty was left to be enforced by those impulses of affection which nature has implanted in the breast of every father toward his offspring. Such obligation was first declared by a statute passed for the indemnity of the public only. (43 Eliz., ch. 2, § 6.) This statute imposed no obligation upon the parent which the child, personally or by a next friend might enforce, nor does a similar statute of our own. (1 R. S., 614, § 1.) Each forms a part of a system whereby provision is made for the maintenance of the poor, by rendering children liable for expenses incurred by the State in the maintenance of parents, as well as by imposing a similar liability on parents; the only object of them being the protection of the State against the expense of supporting paupers. The duty of the father to maintain the child, however, is and always has been recognized in some way, and in some degree, in all civilized countries. The infant cannot support herself; others must supply her with the means of subsistence; and the only question has ever been, whether the State shall do this or her parent. No doubt it is the duty of the parent to do it, but the duty is not made a legal obligation by the common law. The cases not founded upon the statute, in which the duty has been enforced, rest upon the ground of agency. (1 Pars. Cont., hk. 1, ch. 17, § 2.) Broom, in his Commentaries on the Laws of England, remarks: “ It has by some been thought that there is a legal obligation imposed upon every man to provide for his children; but the common law of England seems never to have afforded any meads of enforcing such duty, if it existed.” (1 Broom Com. Law, 551.) Blackstone says this duty is a principle of natural law. (1 Com., 447; see also, Mortimore v. Wright, 6 M. & W., 482; Shelton v. Springett, 11 C. B., 452 ; Cromwell v. Benjamin, 41 Barb., 558, 561; Raymond v. Loyl, 10 id., 483; Chilcott v. Trimble, 13 id., 502.) In these eases it was held that, at common law, there is no legal obligation on a parent to maintain his child. It is obvious that it would be scarcely possible for a court of law to interfere with the details of the father’s management, unless it should be cruel or immoral. The obligation, if it existed, could not be practically enforced, except for the public indemnity, by any better means than by permitting others to supply necessaries for the child, when the father had abandoned his duty, and compelling the father to pay for them upon the ground of an implied authority given to the child. The same reasons which render the father liable in such a case, have been held sufficient to establish the same liability against a stepfather, where he takes the wife’s child, and the father of a bastard, where he takes the illegitimate child into his own house, for by that act he holds the child out to the world as part of his family, and is considered as standing in loco parentis. (Stone v. Carr, 3 Esp., 1; Cooper v. Martin, 4 East, 82, per Lord Ellenborough ; 2 Kent Com., 192.) Upon this principle, the infant in this case, while living with the plaintiff, no doubt might have made him liable for necessaries.

The right to the services of a child, then, results not from any positive obligation imposed by the common law on the person claiming such right, but from the moral duty enjoined by the law of nature; which duty the common law recognized by giving to third persons an action to recover for necessaries furnished the child. Whenever the same duty of furnishing maintenance enjoined by equivalent sanctions exists, the correlative right to the services ought to be awarded. It was upon that principle, that courts have sustained an action by a father for the seduction of a child who was above age, and of a child who was married. (Lipe v. Eisenlerd, supra ; Harper v. Luffkin, 7 B. & C., 387.) For if there can be no loss of service unless a legal obligation to maintain the child exists, these cases were wrongly decided. We are not at liberty to say that. We think the sensible rule is the one already intimated, namely, that he who has assumed and faithfully performed the duties of a father, is entitled to the rights which the law gives to the father. Such was the principle decided in many of the cases cited.

The plaintiff should be allowed to maintain this action upon another ground. In Furman v. Van Sise (supra), it was held that the mother was entitled to maintain the action because she took care of and provided for her daughter during her confinement, in performance of the obligation imposed upon the mother by law. The plaintiff did the same acts for his granddaughter during her confinement, in performance of the obligation which he had assumed as her foster-father. The pecuniary injury in this respect, resulting from the seduction, was as direct in one ease as in the other. So long as the right to maintain an action for seduction shall be permitted to rest upon the flimsy fiction of a loss of service, it seems to us that no just distinction can be made between a parent and a grandfather who adopted the child in infancy, after the death of both her parents, and who then assumed, and has always performed the duties and obligations of a parent. (Williams v. Hutchinson, 3 N. Y., 321.)

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

Smith, J.,

concurs upon the ground that the gift by the mother, just before her decease — the father having previously died — of the seduced, when an infant, to her grandfather, and his acceptance of the gift and assumption of the duty and charge of a parent toward said infant, and bringing her up in his family as if she was his own child, was an adoption of said infant as his own child, and vested in him all the rights of a parent to said infant.

Merwin, J.

(dissenting):

The plaintiff to maintain this action relies upon the principles laid down in Ingersoll v. Jones (5 Barb., 661), Bartley v. Richtmyer (2 id., 182), and Bracy v. Kibbe (31 id., 273). These cases, in general terms, lay down the doctrine that a person in loco parentis can maintain the action to the same extent as the natural parent could. But subsequent adjudications have modified that rule. The case of Bartley v. Richtmyer was reversed in Court of Appeals (4 Comst., 38), the court holding that either the relation of master and servant must, in fact, exist at the time of the seduction, or that the natural relation must be such as to entitle the plaintiff to command the services of the seduced. In that case the plaintiff was the stepfather of the girl, and at the time of the seduction she was engaged in the service of the defendant’s father, at stipulated wages on her own account, she then being nineteen years old. In Ingersoll v. Jones the seduced was the adopted child of plaintiff, who was not otherwise related to her, and she was at the time in the service of a third party. The General Term in the eighth district held the action maintainable, but it is opposed to the principle held in Bartley v. Richtmyer, and is there expressly repudiated by Bronson, J. (Page 47.) In the case of Bracy v. Kibbe (supra), the action was by the adopted parent, but the child was at the time in his actual service, and the same was the case in Irwin v. Dearman (11 East, 23).

In Lipe v. Eisenlerd (32 N. Y., 229), the action was held maintainable by the father of an adult daughter, on the ground that the relation of master and servant existed under an implied contract, although the arrangement had no permanent binding force, and a temporary absence of the daughter at the time of the injury did not affect the relation. If it exist in fact, and the immediate parties are acting under it at the time of the seduction, however imperfect its obligation may be, the defendant, who by his wrongful act has interrupted it, cannot set up that it was liable to be revoked at any time without the consent of the master. (Per Denio, Ch. J., page 234.) In Furman v. Van Sise (56 N. Y., 435), it was held that the mother of a minor daughter, the father being dead, could maintain the action, though the seduction occurred while the child was in the employment of another, and she subsequently returned to plaintiff’s house and was cared for by her. The ground of the decision was that the mother, both by reason of the natural relation as well as by force of the statutes, was under legal obligation to support her minor child, and could therefore command her services.

So that, as the cases now stand, the plaintiff must show either that the relation of master and servant existed at the time of the seduction, or that he, as grandfather or adopted father could command her services. There was no evidence sufficient to sustain a finding by the jury that the relation of master and servant in fact existed between the plaintiff and the girl. She had left his home about two years before, had made her own bargains and received her own wages. Her absence cannot be said to be a temporary one, although at some time she intended to return. The only question then is, could the plaintiff command, or was he entitled to her services? That may depend on whether he is bound to support her. In England, by the statute 43 Elizabeth (1601), a grandfather of sufficient ability is bound to support his indigent grandchild, and this law is, I believe, still in force. (9 L. R. [Q. B.], 254.) The law is the same in New Hampshire, Massachusetts, Pennsylvania, and perhaps some other of the States. In this State, prior to the Revised Statutes, a similar law was in force (1 R L. of 1813, 286, § 21), but since 1829 the statute has not imposed such obligation, and I know of no authority holding that the grandfather or adopted father of a child, not at the time living with him, is liable for its support. The change by the Revised Statutes indicated the intention of the law-makers on the subject. The paternal grandfather, as in this ease, would be the guardian by nature and in socage, and ordinarily, this would entitle him to the custody as against strangers. But if such custody has been parted with voluntarily on both sides, as in this case, it can draw with it no right to services or obligation to support. I am not prepared to hold that the grandfather, as such, is entitled to the services of his minor grandchild or is legally bound to support her. The case of Moritz v. Garnhart (7 Watts, 302), was an action by a grandfather for the abduction of his grandchild, who then lived with him and was being brought up by him, and the relation of master and servant was implied. That does not reach the present case.

I think this action cannot be maintained.

Present — Smith, Gilbert and Merwin, JJ.

Judgment reversed and new trial granted, costs to abide event.


text:
    THE BANK OF MONROE, Respondent, v. SAMUEL FINLAY and others, Appellants.

      TJmry — State tanks — chap. 163 1870.
    Since the decision, of the Supreme Court of the United States in The Farmers and Mechanics' Bank of Buffalo v. Bearing; a State hank, under the provisions of chapter 163 of 1870 forfeits only the interest where a note has heen discounted by it at a usurious rate of interest.
    This statute operates retroactively, and takes away the previous penalty for usury.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    This action was brought by the plaintiff, a bank incorporated under the laws of the State of New York, to recover the amount of a promissory note made by Finlay & Co., dated July 1st, 1872. Finlay’s defense was that the note was usurious.

      J. B. Adams, for the appellants.

      W. F. Cogswell, for the respondent.
   Gilbert, J.:

Usury is now only a partial defense to an action brought upon a promissory note which has been discounted by a State bank. The interest only is forfeited. The recent judgment of the Supreme Court of the United States in The Farmers and Mechanics’ Bank of Buffalo v. Dearing, not yet reported, has effectually exploded the doctrine of our Court of Appeals on this subject, and has established the principle that the usury laws of the States, so far as they apply to national banks, have been superseded by the act of Congress which authorizes the creation of them. (U. S. Rev. Stat., § 5197.) There is, therefore, no longer any reason for withholding the full operation of the act of our own legislature, which provides, as a penalty for usury by State banks, the same consequence as that prescribed by the act of Congress cited, namely, a forfeiture of interest. (Laws of 1870, chap. 163.) This act, also, has put at rest a question often mooted, by declaring that the discount of a note, or other evidence of debt, payable at another place at not more than the rate of exchange, or a reasonable charge for collecting the same, in addition to the interest, shall not constitute usury.

There can be no doubt that this statute operates retroactively, and takes away the previous penalty, for it .repealed all acts and parts of acts inconsistent with it. No penalty can be enforced after the repeal of the law imposing it, unless saved by express words in the repealing act. (Curtiss v. Leavitt, 15 N. Y., 229; Cooley’s Const. Lim., 373, 374.) Such being the effect of the act of 1870, there is no occasion to examine the evidence to see whether a ease of usury under pre-existing laws was made out.

These remarks also dispose of the exceptions taken in the course of the trial.

The judgment must be affirmed.

Present — Mtjllin, P. J., Smith and Gilbert, JJ.

Ordered accordingly.


text:
    JOSEPH W. BAXTER and JOHN R. BAXTER, Respondents, v. SHELDON WARNER, Appellant.

      Excavation in street— MoMlity of person causing.

    The defendant employed one Reynolds to dig a ditch in a street, in the city of Utica, to connect with the sewer therein. 'Reynolds erected barricades around the excavation, but'neglected to place lights thereon. The plaintiff, while driving along the street on a dark and rainy night, in toning out to avoid a projection of the barricade, struck against a post and injured his wagon. Held, that the defendant was liable for the damages thereby sustained.
    Appeal from a judgment of the County Court of Oneida county in favor of the plaintiffs, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon a case and exceptions in an action for damages for injuries done plaintiffs’ wagon by reason of a barricade erected around an excavation in the street, made by defendant’s agent, and left in the night-time without any light thereon. One of the plaintiffs in driving through the street on a dark and rainy night, in turning out to avoid a projection of the barricade, struck against a post and injured the wagon.

      S. M. Lindsley, for the appellant.

      William, II. Davis, for the respondents.
   Gilbert, J.:

We think the evidence was sufficient prima facie to show that the accident occurred upon a public highway. Lansing street had been laid out as a public street, with a carriage-way, sidewalks, gutters, etc., and it was in constant use as a street. " These things would not ordinarily exist, unless it was a street provided for public use by competent authority, and subject to public control and supervision. Indeed, the charter of the city recognized the existence of the street, and the provision relieving the city of the control of a portion of it, does not detract from the character of any part of it in actual public use as a highway. The defendant, therefore, had no right to do any thing himself, or to cause any thing to be done by another, whether servant or contractor, which rendered the street less safe than formerly. It is immaterial to inquire whether Reynolds was a contractor or a servant. He was employed by the defendant to dig the ditch in the street, and the injury is attributable to that act. The rule deduced from the maxim respondeat superior, which exempts an employer, does not apply to cases where the injurious act is the very act which the contractor was employed to do, or a necessary consequence of the work committed to him. Here the defendant shows no legal authority for making an opening in the street; it was an illegal act; that act necessitated the obstruction of the street by barriers, to prevent travelers from falling into the ditch; and these barriers being left in the nighttime without lights, were the immediate cause of the accident to the plaintiff. The defendant cannot escape liability for the doing of such acts, by proving that he made a contract with another to do them, and that they were actually done by the latter, and not by himself. (Ellis v. Sheffield Gas Com. Co., 2 Ell. & Bl., 767; Gray v. Pullin, 5 B. & S., 970, 981; Pickard v. Smith, 10 C. B. [N. S.], 470; Mersey Docks v. Trustees L. R., 1 H. of L., 114; Storrs v. City of Utica, 17 N. Y., 104; Congreve v. Smith, 18 id., 79; Creed v. Hartman, 29 id., 591.)

The question of the contributive negligence of the plaintiff was one of fact, and, we think,' was submitted to the. jury in a manner quite as favorable to the defendant as the evidence warranted.

The judgment and order denying a new trial should be affirmed.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Ordered accordingly.


author: Mullin, P. J.:

text:
    GARRISON B. JOHNSON, Appellant, v. MARY L. WHITE, Impleaded with others, Respondent.

      Code, § 158 — reply — when unnecessary — new matter in answer.

    Where new matter is set up in the answer, not constituting a counter-claim, the plaintiff is not confined to proving the negative of the matter thus alleged, but may prove any facts by which the same is avoided.
    Where, in an action to foreclose a mortgage, the defendant alleged that the plaintiff was not the owner and holder of the mortgage, but that the same was owned by one P,, held,, that the plaintiff was entitled to prove that although the mortgage had once been assigned to P., yet that P. had subsequently reassigned to him.
    Appeal from a judgment in favor of the defendants entered upon the trial of this action by the court, without a jury.
    The defendant Merritt, on the 25th of March, 1873, gave to the plaintiff his bond, conditioned to pay him $1,000, at certain times therein specified. To secure its payment he executed and delivered to the plaintiff a mortgage on certain lands, described in the complaint, with the same conditions as to terms and times of payment as the said bond. The mortgage was duly recorded in the county where the land lies.
    On the 26th of July, 1873, Merritt conveyed said mortgaged premises to the defendant Mary L. White, by warranty deed. She went into possession and paid $266.66 on said mortgage.
    The deed from Merritt to Mrs. White contained the following provisions, viz.:

      “ This conveyance is made subject to the payment of $500 and interest thereon from October 23d, 1872, to become due on a mortgage on the above described premises, given by G. B. Johnson to Julia A. Foster, which said sum of $500 and interest the said party of the second .part, Mrs. White, assumes and agrees to pay as so much of the purchase-money of said premises, and to the payment of which she binds herself, her heirs, etc. Also, this conveyance is made subject to the payment of $1,000 and interest from March 25th, 1872, on one other mortgage on said premises, now held by Garrison B. Johnson, which said sum of $1,000 and interest as aforesaid, the party of the second part agrees and assumes to pay as part of said purchase-money of said premises, and to which payment she binds herself, her heirs, etc.”
    On the 25th of April, 1873, said Johnson assigned said mortgage to one William Parkhurst, and Parkhurst owned the same at the time of the execution and delivery of said deed.
    The moneys mentioned in said bond and mortgage, from Mrs. White to Merritt, having become due and being unpaid, this action was commenced to foreclose said mortgage. The complaint was in the . usual form. Mrs. White, alone, appeared and answered. Her answer admits some of the allegations in the complaint and denies others, not material to be considered in deciding the questions arising on this appeal.
    She alleges, in her fourth defense, that the clauses in the deed from Merritt to her, by which she is made to assume the payment of the' mortgage from Merritt to Johnson, was inserted in said deed by mistake, which mistake she did not discover until a short time before this action was brought, and then she called upon him and he released her from the said assumption of the mortgage in said deed.
    The defendant, in her sixth defense, alleges that the plaintiff had assigned to one Parkhurst the bond and mortgage in this suit, and she alleges that plaintiff is not the real party in interest in this action. On the trial at Special Term the foregoing facts, except as to the mistake in the deed and the release by Merritt of the plaintiff from the obligation imposed by said clause in said deed, were proved.
    The plaintiff then offered to prove that Parkhurst had reassigned to him the bond and mortgage. The defendant’s counsel objected to the evidence, on the ground that it was inadmissible under the pleadings, and immaterial and incompetent.
    The court sustained the objections, and rejected the evidence, and plaintiff’s counsel excepted.
    On motion of the defendant’s counsel, the court dismissed the complaint, and plaintiff’s counsel excepted.
    Judgment dismissing the complaint was entered in favor of the defendant, with costs, from which plaintiff appeals.

      A. L. Johnson,, for the appellant.

      Irving G. Vann, for the respondents.
   Mullin, P. J.:

By section 153 of the Code, a reply to new matter in the answer setting up a counter-claim is only necessary when it sets up a counter-claim.

The answer, in this ease, does not set up a counter-claim, hence, no reply was necessary. The answer stood denied.

The defendant, on the cross-examination of the plaintiff, proved by him, the plaintiff, the assignment of the bond and mortgage to Parkhurst, and the court refused to allow the plaintiff to prove that Parkhurst reassigned it to him, on the ground, as I infer from the points of counsel, that there was no allegation in the plaintiff’s pleadings admitting such proof.

The defendant was right in setting up, in her answer, that Parkhurst was the owner of the bond and mortgage, and, consequently, that plaintiff could not maintain the action. If it was true, as the plaintiff offered to prove, that Parkhurst reassigned them to him, the defense was avoided, and the plaintiff was entitled to maintain the action.

The plaintiff could not set up the reassignment by any rejoinder to the reply, and, hence, the averment must be made in the complaint, if it could not be proved on the trial, without any allegation in a pleading in respect to it. To amend the complaint, to admit of such proof, would have been a violation of principles of pleadings prescribed by the Code, and would be without precedent in any system of pleading. '

No reply being necessary to the answer of defendant, it was to be deemed denied for all purposes of the action.

Under such a denial, what evidence may the plaintiff give in reply to the new matter of the answer ? Is he confined to proving the negative of the matters alleged in the answer; or may he prove any matter which, in law or in fact, avoids the new matter in the answer?

The position of the plaintiff’ under section 153 of the Code, is precisely the same, as it was after replication filed in chancery. He was entitled to give any evidence that avoided the new matter in the answer; and he is now entitled to give the same evidence without replication, unless the answer sets up a counter-claim. The new matter in the answer may render necessary an amendment of the bill, by making new parties, or getting rid of those whom he has already made parties; but it was never heard of, I think, that a plaintiff was bound to amend his bill when the defendant alleged, in his answer, a transfer of the subject-matter of the action, by alleging, first, an assignment of the cause of action, and then a reassignment back to him, in order that he might prove the reassignment.

The defendant having proved the assignment to Parkhurst, it was the right of the plaintiff to prove the reassignment; and, because he was deprived of this right, the judgment must be set aside, and a new trial granted, costs to abide event.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Judgment reversed and new trial granted, costs to abide event


text:
    JOHNATHAN L. BOOTH, JOSEPH B. SPRAGUE and MARIA L. ASHLEY, Plaintiffs, v. THE CLEVELAND ROLLING MILLS COMPANY and others, Defendants.

      Condition — promise, when implied from — Sealed inst/mment.

    Where a contract contains a condition which it is the duty of one of the parties to it to perform, and which the other party is interested in having performed, the law will imply a promise to perform it, and will sustain an action by the injured party to obtain compensation for a breach of it.
    In instruments not under seal, promises not covenants are implied ; and a promise will be implied under the same circumstances, under which a covenant would be implied if the instrument were under seal.
    Motion for a new trial on exceptions, ordered to be heard in the first instance at the General Term, after a nonsuit directed by the court.
    The action was brought to recover the damages sustained by the plaintiffs, in consequence of the failure of the defendants to manufacture and sell steel rails in pursuance of a contract entered into with the plaintiffs.

      James Breck PerTcms, for the plaintiffs.

      Geo. F. JDanforth, for the defendants.
   Mullin, P. J.:

The plaintiffs were owners of a patent for the manufacture of a rail for use on railroads, known as Booth’s patent duplex safety steel and iron rail, and on the 1st of June, 1869, they entered into an agreement in writing with the defendants, in and by which the plaintiffs agreed to give to the defendants a full license to manufacture said rail in the States of Ohio, Indiana and Illinois, said license to continue during the running of said patent, and of all renewals thereof, and of all improvements upon such patent, and to all patents for machinery for the manufacture of said rails, such license to be exclusive in said States, with a single exception, not material to be further referred to; such license to continue as long as the defendant should supply the demand for such rail in said States. All rails were to be of good material and made in a workmanlike manner, and according to plaintiffs’ directions. The plaintiff’s, reserved the right to inspect all rails made before delivery to the purchaser. The said license was given on the following conditions:

First. The defendants to pay a royalty of two dollars and fifty cents on each ton for the first 7,000 tons manufactured, payable on the fifteenth of each month for the month preceding.

Second. The defendants to give plaintiff's notice of any contemplated delivery of any quantity of rails, so that they may inspect the same if they desire.

Third. All defective rails, if any such were delivered, to be sold as such, and not as first quality, and the purchaser must be informed of their inferior quality.

Fourth. The royalty on defective rails to be one-half of that payable on perfect rails.

Fifth. Defendants to keep true accounts of all deliveries of said rails, and such accounts are to be open at all times to the inspection of the plaintiffs or their agents.

It was further agreed between the parties that plaintiffs should send to defendants, at Cleveland, all machinery, tools, etc., then in their possession at Bochester, for the manufacture of said rails, the value thereof to be agreed on between the parties, and if they could not agree, then an umpire to be selected. The ownership of the machinery, etc., was to be in the plaintiffs, until the defendants should have completed 7,000 tons of rails, and then said property to belong to defendants, and be paid for by them. The defendants were to proceed at once to make said rails in Cleveland, and within a reasonable time in Chicago, and to use all proper effort and due diligence to introduce and sell said rails; no other rail made by them to receive more attention or interest than the Booth rail, so long as said rail holds good as a practical and reliable rail for use. No other manufacturers in the United States shall have the right to manufacture said rail, at any less royalty than is paid by defendants.

It was further agreed that when the royalty is reduced by reason of defect in the rail, the rail shall be sold at a less price, and parties purchasing such defective rails should be prohibited from laying them upon any main line or track of any road, and the purchaser of such rails must give to the defendant a written obligation agreeing to be responsible, and be treated as using said rails without authority, and infringing of the said-patents, and liable for all damages as such infringers. The purchase of said second class rails does not permit their use on main line tracks, but only side tracks, yards, and places where fast trains are not run.

On the day of the date of the last mentioned contract, the parties made another agreement, in which it was recited that the plaintiffs had sold, and did thereby sell and grant unto «the defendants the right, license and privilege to manufacture said rails in the States in former contract mentioned, so long as they shall supply the demand for said improvement in rails in the said States, paying the royalty aforesaid, and otherwise conforming to all the obligations in said agreement, with the same exceptions as is contained in said first mentioned contract. The remaining provisions of the agreement have no bearing upon the rights or obligations of the parties in this action.

The breaches of said contract for which damages are sought in the action, are:

First. That the rails manufactured by defendants, under said contract, were not made of good material, nor in a workmanlike manner, according to the direction of said plaintiffs.

Second. Defendants have not made proper efforts and used due diligence, to introduce and sell such rails.

Third. They have neglected and refused to manufacture such rails or to fill orders or supply the demand therefor, and have given greater attention to other rails.

Fourth. Defendants have refused to fill an order of the Lake Shore and Michigan Southern Railroad Company for 4,000 tons of plaintiffs’ rails, on which plaintiffs would have received a royalty of $10,000.

Fifth. Defendants have also refused to fill other orders for such rails.

Sixth. Defendants have not paid for the machinery sent by plaintiffs to them pursuant to said contract, notwithstanding they made and delivered 3,000 tons of rails, and had orders for enough more to make up 7,000 tons, when, by the terms of the contract, the defendants were bound to pay for said machinery.

On the trial the plaintiffs proved the contract, and that after making the same plaintiffs sent the machinery they had at Rochester to defendants at Cleveland, and they made no more rails thereafter. The plaintiff Booth called the attention of defendants’ president to the provisions of the contract as to the selection of arbitrators, who said there would be no difficulty in their agreeing on the price. Defendants manufactured rails, under the contract, up to 28th January, 1871, when an account of the quantity made and sold was given to plaintiffs. The amount was 3,046 tons, on which the royalty was paid. That the Lake Shore and Michigan Southern Railroad Company made a contract with defendants for the purchase of some 4,100 tons of the Booth rail, in 1870 and 1871, of which about 2,000 tons were delivered, and the residue was not delivered.

It was also proved that contract was made between defendants and the Chicago, Rock Island and Pacific Railroad Company for the sale, to the latter, of 1,000 tons of the Booth rail, which the purchasers refused to receive because they were not shipped in time.

The plaintiffs offered to prove that the company last named refused to receive the iron because it was defective, and that the rails made by defendants were not made in a workmanlike manner.

The evidence was objected to by defendants’ counsel, and it was excluded, and plaintiffs’ counsel excepted.

The plaintiffs’ counsel also offered to prove that defendants gave more attention to other rails manufactured by them, than they gave to the Booth rail, and that they filled the contract with the Lake Shore road by delivering solid steel rails. This offer was objected to by defendants’ counsel. The objection was sustained, and plaintiffs’ counsel excepted. The plaintiffs’ counsel offered to prove that during all the time of the running of the license the Booth rail continued to be a good, practicable and reliable rail. The offer was objected to by defendants. The objection was sustained and plaintiffs’ counsel excepted. The plaintiffs’ counsel rested.

The defendants’ counsel moved for a nonsuit. The court granted the motion, on the ground that there was no covenant to manufacture rails. To this ruling and decision plaintiffs’ counsel excepted.

If it be the law that the contracts between the parties are a mere license to the defendants to make and vend the Booth rail, and that the plaintiffs’ only remedy for a breach of the condition in the contract was to revoke the license, and that no action can be maintained against defendants for a breach of such condition, then the plaintiffs were rightly nonsuited, and a new trial must be denied; but if, on the contrary, the law will imply a promise on the part of the defendants to perform some or all of said conditions, the nonsuit was erroneous and a new trial must be granted.

That the plaintiffs could revoke the license, in the event of defendants’ neglecting to comply with the conditions of said contract, is not to be doubted, but was this plaintiffs’ only remedy? It seem to me not.

By the contract defendants were to manufacture rails from good material and in a workmanlike manner. If they did not, the reputation of the rail was injured, the sale lessened, and the royalty, which the plaintiffs would have been entitled to receive, also lessened.

It was not, I am quite sure, the understanding and intention of the parties, that the plaintiffs’ remedy for a breach of the contract should be limited to a revocation of the license.

The plaintiffs relinquished the manufacture of the rail, and transferred not only the right to manufacture them to the defendants, but also the machinery they had used in manufacturing them. They received in return only so much as royalty, as it suited the interest or convenience of the defendants to earn. An account of sales was to be rendered once in each month for at least one month, therefore defendants might omit altogether to manufacture rails, or could manufacture worthless ones before plaintiffs • could obtain the information necessary to justify them in revoking the license.

I think the law is, that when a contract contains a condition which it is the duty of one of the parties to it to perform, and the other party has an interest in having it performed, the law will imply a promise by the party to perform it, and will sustain an action by the injured party to obtain compensation for a breach of it. (Roberts v. Marston, 20 Me., 275.) In Phelps v. Townsend (8 Pick., 392), the defendant, by a writing signed by him, placed his son with the plaintiff to learn the. printer’s trade until he was twenty-one years of age,, and agreed to pay plaintiff a certain amount if the boy did not stay with him four months after he became twenty-one. The boy went to live with plaintiff) and was taught the trade until he became twenty-one, when he left. The action was brought on the contract to recover the amount agreed by defendant to be paid, and a recovery was resisted on the ground that there was no mutuality in the contract, as plaintiff had not agreed to instruct the boy. in the business’ of printing; but the court held that plaintiff having accepted the contract and executed it in part, an obligation on his part to teach and maintain 'the boy was created.

The same principle was applied by the same court, in Hubbard v. Coolidge (1 Metc., 84). In McIntyre v. Belcher (14 C. B. [N. S.], 654), the action was to recover a certain sum that defendant had agreed to pay plaintiff, for their drugs in an apothecary shop they had carried on, and also for the practice of the plaintiff, as a physician for a certain portion of the earnings in each year, for four consecutive years, if he should be living in each year. It was shown on the trial that defendant had by his own act disabled himself from further carrying on his business, and had abandoned his business ; it was held that it was an implied covenant in the agreement, that the defendant would not during the four years, by his own wilful acts or default, prevent the receipt of earnings. (1 Chitty on Con. [11th Am. ed.], 80 and notes; Same, 88, 89.)

The Queen’s Bench, in Sterling v. Maitland (5 B. & S., 849), held that if a party enters into an agreement which can only take effect by the continuance of a certain existing,state of circumstances, there is an implied engagement on his part that he should do nothing, of his own motion, to put an end to that state of circumstances, under which the arrangement can be operative. It is said in Taylor Landlord and Tenant (§ 251), that a license if under seal may take effect as a covenant, as when it authorizes the party, to whom it is made, to' go upon the land of the party granting it, and use the land for his own profit, the license would be equivalent to a lease; or it may be limited to some particular purpose as to cut wood or draw water, and in either case would be supported as a covenant. In the same work (§ 252), it is said, a covenant is implied on the part of the lessee, that he will use the land demised to him in a husbandlike manner, and not unnecessarily exhaust the soil by neglect or improper tillage. And as a consideration is necessary to every contract, it is always implied that the tenant shall pay an annual rent. So a covenant by a lessee to pen and fold the flock of sheep, which he should keep upon the premises, upon those parts of the land where they had usually been folded, was held to imply a covenant to keep a flock of sheep upon the premises.

In instruments not under seal promises not covenants are implied, and the same promise is implied under the same circumstances that a covenant would be implied if the contract were sealed.

If á man hires a horse of a livery stable keeper, the law implies a promise on the part of the hirer to properly feed, kindly treat, and safely return the animal to the owner, unless loss or injury occurred without his fault or neglect. If the owner of property permits another to use it without compensation, a promise is implied that the borrower shall safely keep such property, and return it when the bailment is at an end.

But it is unnecessary to multiply authorities upon a proposition so elementary. I have referred to them, merely to show that it is not necessary, in order to render a party responsible upon a contract, that it should contain an express agreement on his behalf, if by the relations of the parties, and the subject-matter of the contract, a duty is owing from the one not expressly bound by the contract to the other, in reference to the subject of it.

I am of opinion, therefore, that the law implies a promise by the defendant to perform all the conditions of the lease, in the performance of which the plaintiffs have a pecuniary interest, except that which relates to the payment of the price of the machinery.

Defendants’ liability to pay for that property is dependent upon two conditions: One is the making of 7,000 tons of the Booth rail, and the ascertainment of the price either by mutual agreement or by arbitration. The defendants did not manufacture 7,000 tons of the rails, and unless the failure to make that quantity was caused by the fault or neglect of the defendants, they are not liable.

Either party could terminate the contract at pleasure, but the defendants, in order to relieve themselves, were bound to give notice of their determination, and return to plaintiffs the machinery. They could not keep silent and omit to make the rails, retain the machinery and deprive plaintiffs of the royalty to which they would have been entitled, had the defendants, in good faith, performed the contract.

The plaintiffs cannot recover the price of the machinery until the price is ascertained, in one of the ways provided in the contract.

The nonsuit must be set aside and a new trial granted, costs to abide event.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Nonsuit set aside and new trial granted.


author: Mullin, P. J. :

text:
    GEORGE F. SMITH, Plaintiff, v. SHUBAEL FARNWORTH, Defendant.

      Landlord and tenant — lease— renewal of— repairs — destruction of property.

    The plaintiff, while in possession of a store of the defendant, as his lessee, agreed to take a new lease for two years, to commence on the expiration of the old one, he agreeing to make certain repairs of the value of $250, which amount was to be deducted from the rent to become due under the new lease. The plaintiff made these repairs, and subsequently and before the expiration of the old term, the premises were destroyed by Are without the fault of the plaintiff. No new lease was given, and defendant subsequently sold the land to a third person, held, that the plaintiff was entitled to recover the value of the improvements made upon the premises.
    Motion for a new trial on exceptions ordered to be heard in the first instance at the General Term, after an order nonsuiting the plaintiff.
    The action was brought to recover the value of certain repairs made upon a store of the defendant, by the plaintiff while occupying the same as his tenant. The repairs were made in pursuance of an agreement between the parties by which a new lease was to be taken. The premises were destroyed by fire before the expiration of the old lease, and the new one was never executed. This action was brought to recover the value of the repairs which had already been made.

      James Wood, for the plaintiff.

      S. Hubbard, for the defendant.
   Mullin, P. J. :

The plaintiff was nonsuited at the trial, and now moves for a new trial on exceptions taken at the Circuit, which are ordered to be heard here, in the first instance.

The plaintiff rented of the defendant a store in the village of Avon, for the term of two years, rent payable quarterly in advance. He entered and occupied until a few months before the expiration of his lease, having paid up the rent until the end of his term. The building was destroyed by fire, without the fault of the plaintiff.

Before the destruction of the building the plaintiff and defendant made a verbal agreement by which plaintiff was to have a lease of the store for the term of two years from and after the expiration of the then present term. The plaintiff agreed to make certain repairs on the store to the amount of $250, and this sum was to apply on the rent under the new lease. The rent was to be the same under the new as under the then subsisting lease, and ten per cent per annum for the repairs.

The plaintiff made the repairs pursuant to the agreement. The defendant did not give him a new lease. The property was destroyed before the new term was, by the arrangement, to begin. The store stood upon a lot of land containing three-fourths of an acre. No formal surrender of the premises was ever made by the plaintiff to the defendant. A few months after the destruction of the store, defendant sold and conveyed the land on which it stood to a third person.

The plaintiff was improperly nonsuited. The consideration for making the repairs was the lease thereafter to be executed; the destruction of the store rendered a lease for another two years valueless. In this view of the effect of the fire, the defendant acquiesced, as he did not make a new lease or even offer one to the plaintiff.

The consideration for making the repairs failed totally; and it would be strange indeed if the plaintiff could not recover either the $250 or what they were reasonably worth.

I am unable to appreciate the proposition that plaintiff cannot recover, because the lease upon which the repairs were to apply in payment of the rent was never executed.

It can make no difference whether the payment sought to be recovered in this action was in money or work and labor.

The repairs were, in legal intendment, money, and can be recovered for, and when recoverable at all, precisely, as if money had been paid.

When the repairs were completed the value of the defendant’s property was’ increased without any benefit to the plaintiff, although made at his expense. (Dill v. Wareham, 7 Metc., 438; Hill v. Rewee, 11 id., 271; Brown v. Harris, 2 Gray, 359; Wheeler v. Board, 12 Johns., 363; Briggs v. Vanderbilt, 19 Barb., 222; Griggs v. Austin, 3 Pick., 20; Carter v. Carter, 14 id, 424; Lyon v. Annable, 4 Conn., 350; 2 Chitty on Cont. [11th Am. ed.], 920; Murray v. Richards 1 Wendell, 58.)

The nonsuit must be set aside and a new trial granted, costs to abide event.

Present — Mullin, P. J., Smith and Gilbert, JJ.

New trial granted, costs to abide event.


text:
    JOHN D. SPINNER, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Railroad eompa/ny — duty of, to maintain fences — gates in — liabilities of company when they are left open.

      Where a gate is put iu a fence, erected by a railroad company in pursuance of the provisions of the general railroad act, for the convenience of the owners of the adjoining land, and such gate is continually left open by the agents or servants of the company,' or by those doing business with it, the fence is not maintained within the true intent and meaning of the statute, and the company is liable for any injury occasioned thereby.

      Semble, that the company is liable, even if the gate is left open by the person, for whose convenience it was constructed.
    The mere fact that cattle are found upon the track, without evidence of any right or authority from the company, does not, of itself, establish negligence on the part of the owner of the cattle.

      Appeal from a judgment in favor of the plaintiff entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the judge’s minutes.
    In September, 1812, the plaintiff- was in possession of a farm of land near Ilion, in the county of Herkimer, on which he had a herd of cattle.
    The defendant’s road ran along the northerly side of the farm, adjoining a public highway which lay between the railroad and the farm.
    Between the highway and the railroad defendant had built a fence, and in the fence near the house of one Farrington, a gate was placed, as well to enable him to pass to and from a part of his farm lying on the opposite side of the railroad from his house, as to enable persons conveying freight to and from defendant’s depot, near Ilion, to pass to and from said depot with freight.
    In the night of the 30th of September, 1812, the plaintiff’s fence was in some way broken down, and the plaintiff’s cattle passed through it on to the highway, and the gate near Farrington’s being open, the cattle passed through on to the track; some of them were injured by an engine, with train of cars attached, and others were killed.
    An action was brought in this court to recover damages for the loss of, and injury to said cattle. The court, after hearing the evidence, ordered a verdict for the plaintiff, but submitted the question of damages to the jury. The jury assessed the damages. Judgment was entered up and an appeal taken to this court, by which the judgment was reversed, on the ground that the question whether, at the time of the injury, the gate through which the cattle passed was used by the defendant or his agent, or those doing business with it, for access to the depot from the highway, and the highway to the depot, and whether it was left open through the negligence of said defendant’s agent or persons doing business with it, were questions for the jury, and should have been submitted to them. (2 Hun, 421.)
    A second trial was had and a verdict was again rendered for the plaintiff, and the defendant again appealed.
    The court instructed the jury on the second trial that if defendant’s agents or servants carelessly left open the gate on the night in question, then defendant was liable for the damages sustained by the plaintiff.
    The court refused to charge the jury that the defendant had sufficiently erected and maintained a fence along its road, without the qualification that if it had carelessly omitted to shut the gate, it had not complied with the requirements of the statute.
    The court refused to charge that the mere presence of the cattle on the defendant’s road, would bar the right of recovery.
    The court refused to charge that plaintiff’s cattle being upon the defendant’s track, without any evidence of right or authority from the defendant, .was conclusive evidence of negligence.
    The defendant’s counsel excepted.

      S. W. Jackson, for the appellant.

      Amos II. Prescott, for the respondent.
   Mullin, P. J.:

In order to exempt a railroad company from liability for killing cattle on its track, under section 8 of the general railroad act, it must erect and maintain fences on the sides of its road, with openings or gates, or bars therein, at the farm crossings, for the use of the proprietors of the land adjoining, and so long as such fences shall not be made, and when made not kept in good repair, such railroad corporation shall be liable for damages which shall be done by the agents or engines of such corporation to any cattle.

I am of the opinion that a company is bound to see to it, that all gates on its road are kept closed, and it is liable if they are left open, even by the persons for whose convenience they are constructed. Such owner owes no duty to the owners of cattle that may be in the highways or adjoining fields. But it is not necessary to go that length in this case, as the court instructed the jury the defendant was not liable unless it was carelessly left open by defendant’s agents or servants, or by those doing business with it.

The jury must have found that the gate was carelessly left open by some of the persons referred to, or a verdict could not have been rendered.

If I am right in this, the court properly refused to charge that defendant had sufficiently erected and maintained a fence along its line, unless qualified as suggested by the court.

The refusal of the court to charge that the mere presence of plaintiffs cattle on defendant’s road barred the right of recovery was correct, unless that fact is evidence of negligence on the part of the owner of the cattle.

How the breach was made in plaintiff’s fence, through which the cattle passed into the highway from his field, does not appear, nor is there any proof as to the condition of that' fence. The plaintiff says the fence was apparently torn down. He was not asked if he knew how, or by whom, it was torn down, and it is fairly inferable, from the language, that it was not done by him or his orders. If the fence was sufficient to restrain cattle, and was broken down by some agency over which plaintiff had no control, then plaintiff was not chargeable with negligence contributing to the injury.

The jury were told that if they found any evidence of negligence on the part of the plaintiff, they should find for the defendant.

Their finding negatives any negligence on the part of the plaintiff.

The answer to the exception to the refusal to charge as requested just considered, answers the exception to the refusal to charge that finding the cattle on defendant’s track, without any evidence of right or authority from defendant, was conclusive evidence of negligence.

When a gate is put in a fence for the convenience of the owners of land adjoining the railroad, and it is not kept shut, the fence is not maintained within the true intent and meaning of the section above cited.

The object of the legislature in requiring a railroad company to fence on each side of its track, was to prevent the cattle of the persons over whose lands it crossed, and the cattle of others rightfully on such land, from straying on the track and being injured or killed, and to 'transfer the duty of fencing from the owners of the land to the company. If there is a gate in the fence on each farm, and they may be left open, of what value is the fence, and what security have the owners of the land that their cattle will not be destroyed ? The former request embraced this.

I have not seen the ease presented to this court when it was before it on a former appeal, and I am not, for that reason, able to say whether the facts are so nearly alike, as that the opinion of my brother Smith applies to the case as it is now presented.

The judgment and order must be affirmed.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Ordered accordingly.