text:
    Henry T. Blodgett, Resp'ts, v. James T. Hall, App’lt.

      (New York City Court, General Term,

      Filed March 19, 1895.)

    Contract—Conditional promise.
    Where a promisor obligates himself to pay “when able to do so,” the-promise is conditional, and to entitle the promisee to recover thereon, he-must plead and prove the fact of such ability.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Samson Lachman, for app’lt; Maurice Meyer, for resp’t.
   Van Wyck, J.

The defendant herein was, prior to October 11, 1893, the vice-president of the Hall Company, a corporation, while-the plaintiff herein was at that time employed by such company under a written contract for the term of two years from January 1, 1893, at the annual salary of $4,160, payable in weekly installments-of $80, and was also to receive 33 percent, of the net profits realized on business induced by him, less the amount of such annual salary. This defendant was, on that October day, appointed by the court of common pleas the receiver of such corporation, and as such receiver he was authorized by the court to execute certain uncompleted contracts, and the plaintiff thereafter looked after the completion of certain of these contracts. The plaintiff’s alleged cause of action is for services performed by him for defendant at his request and for which he promised to pay $30 per week, and to substantiate which plaintiff testified that defendant had called him into the office, and said to him “ that the company had gone into the hands of a receiver; that he had been appointed such receiver on that day, and that he could not afford, as such receiver, to pay me the salary of $80 per week, and added that he would pay me $50 per week, and he would hold himself personally responsible for the extra $30, as he thought that, as soon as he could arrange matters, that the business would go on, and that he wanted me to remain under the terms of the old contract, that he would hold himself responsible for that $30; that he could not afford to pay me a salary of $80 per week; that he would be questioned if he did so as receiver, but that he would pay me $50 per week, and hold himself personally responsible for the payment of the other $30; as soon as he got his affairs straightened up with the company, if he could not pay me before, he would pay me then,—as soon as he got the company's affairs straightened up." The plaintiff further testified that he continued to perform services under this arrangement for fifteen weeks, and then sought and obtained cmployment elewhere, and that during such fifteen, weeks he was regularly paid $50 per week by the defendant as receiver of the Hall Company. The defendant’s (appellent’s) contention was at trial, and is here, that this proof by plaintiff showed that defendant’s promise to pay this $30 extra per week was not an absolute promise, enforceable by action to recover this $80 at the end of each week of service, but was a conditional promise, and that plaintiff had made no proof that the condition on which it was rendered dependent had ever been performed, in that he made no effort to prove that defendant had got the company’s affairs or his affairs with the company straightened up, or that there had been any subsequent improvement in the condition of the affairs of the company or the defendant. It is certain that the defendant’s promise, as shown by plaintiff’s proof, was not an absolute and unconditional promis'e to pay $30 extra each and every week of service, and this much is conceded by respondent’s counsel; but he insists that “ the expression ‘straightened up’ is so vague and indefinite that its meaning cannot be readily determined without explanation.” But, even so, who but the plaintiff was called upon to give the explanation, as he was them making out his case? And counsel continuing, says: “But, even if it could be determined that by this expression was meant a state of facts which would constitute a bar to the action as being permaturely brought that would be an affirmative defense, to be shown by defendant, and not a condition precedent, to be proved by plaintiff to entitle him to recover.'' However, both inquiries, the one as to whether the condition is- too vague and indefinite, and the other whether it is a condition precedent, must be answered by the same rules of interpretation. Whether a provision shall have the effect of a condition on which a promise to pay is rendered dependent is often a question of much difficulty, and the decision of the question must depend upon the intention of the parties, to be collected, in each particular case, from the terms of the agreement itself and from the subject-matter to which it relates, and on the reason and sense of the thing, as it can be collected from whatever constitutes the agreement sought to be enforced, and such a condition must be some provision which cannot be severed from the agreement, and - leave it, within a fair interpretation, as the contract of the parties. These parties sought to attain and carry into effect a certain purpose and object. The defendant was an officer, and the plaintiff an employe, of the same corporation, which had become embarrassed financially, and was in the hands of a receiver, and they both had an interest in having the affairs of the corporation straightened up,—the plaintiff because he had a contract with more than a year to run, under which he drew $4,000 per year in weekly installments of $80, and was entitled to 33 per cent, of certain net profits; and the defendant because he was the president and a stockholder, and had been appointed the receiver of the same. It was their common desire that ’they should lend their best efforts, in their respective relations to the company, in bringing the corporation out of its financial difficulties, and this was their purpose and object. The plaintiff says that the defendant told him that as soon as he could arrange matters the business-would go on, and that he wanted him to continue his employment and services under the old contract (meaning of course his unexpired written contract with the company), but that he (defendant) could not as receiver afford to pay him the salary of $80 per week, but that he would as such receiver pay him $50 per week, and hold, himself personally responsible for the payment of the other $30, per week, as soon as he got the company’s affairs, and his affairs with the company, straightened up. “As soon as" means immediately at or after another event; hence the promise to pay plaintiff an additional salary, at the rate of $30 per week, as soon as begot the company’s affairs or his affairs with the company straightened up, was dependent upon another event. Strictly speaking to straighten up an insolvent’s affairs is to bring him from a stress of poverty to a state of prosperity, and to straighten up the affairs of an insolvent corporation, whose entire assets have passed into the hands of a receiver, is to bring back its corporate life, which has been suspended during the receivership, and thus its matters-become so arranged that its business can be carried on in its corporate name and under its franchise, and it becomes again an-artificial being with legal life, although its financial condition may be so unhealthy as to make its life a burden to the stockholders. The defendant’s promise to pay under this agreemeut was certainly not enforceable by action until the company had regained corporate authority to carry on business, or defendant’s affairs with the company had been straightened up; and plaintiff made-no proof of the happening of either event; or that there had been any improvement or any change whatever of the company’s affairs, or of defendant’s affairs with the company, subsequent to the promise to pay. The nonsuit was sought upon the grounds that the plaintiff had failed to prove the alleged or any cause of action, or that the condition on which the promise to pay was rendered defendant had been performed. The rule is that, where a promisor obligates himself to pay “when able to do so," the promise is conditional, and, to entitle the promisee to recover thereon, he must, plead and prove the fact of such ability. Work v. Beach, 35 St. Rep. 22; aff’d, 37 St. Rep. 547. And so, too, where the promise is to pay “ the moment he was able." Tebo v. Robinson, 100 N. Y. 27. And see Wakeman v. Sherman, 9 N. Y. 85, where the promise-was “that at the end of one year, if successful in business, he would commence paying ”; held a condition precedent, and that plaintiff should have been nonsuited, because no evidence bad been given to show the result of the year’s business succeeding the promise. The judgment and order appealed from are reversed,, with costs to appellant, to abide the event.

All concur.


source: Caselaw Access Project

author: Van Wyck, J.

license: Public Domain

text:
    Jacob Balz, Resp’t, v. Daniel M. Shaw, App’lt.

      (New York City Court, General Term,

      Filed March 19, 1895.)

    Estoppel—In pais.
    Where a person sold a piano to a woman and took from her a chattel mortgage for the price which he never filed, his receipt stating that he had received from the buyer’s husband four hundred and forty (by note) dollars on account of piano, does not estop him from denying that the husband was the owner of the piano, as against a party who, relying on the receipt, as evidence of the husband’s ownership, made a loan to him and took a chattel mortgage on the piano.
    Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Jas. M. Fisk, for app’lt; J. P. Schuchman, for resp’t.
   Van Wyck, J.

The action is for damages for the conversion of a piano, and plaintiff’s proof is that he was a dealer in pianos, and had, on December 23, 1893, sold and delivered the one in question to Mrs. Joseph Schwarz, at No. 244 West Fifty-Second street, this city, for the sum of $450, of which $10 cash was paid, and he took back from her, on that day, a chattel mortgage on the piano to secure the payment of $440, the balance on the purchase price,' which is still unpaid, and which contained, among others, a, provision that, if she did not keep and retain the piano for her own use on said premises, “ the whole principal sum, with interest, shall become due, and this sale absolute ”; that this mortgage had not been filed in the register’s office; that before commencement of this action the piano was in the possession of the defendant, who claimed it under a chattel mortgage thereon made to him by Mr. Joseph Schwarz, and it was then on storage in the warerooms of one Morse, an auctioneer and furniture dealer. Although plaintiff’s mortgage had not been filed as required by law, still it was valid as between him and Mrs. Joseph Schwarz, the mortgagor, and he was entitled to the immediate possession because of her breach, among others, of the condition and provision as to keeping and retaining the piano for her own nse on the designated premises ; hence, the motion to nonsuit him was properly denied. The defendant’s proof shows that on January 2, 1894, Mr. Joseph Schwarz called at his office and requested a loan of $550, to be secured by chattel mortgage, and stated that'he had a house full of furniture at 244 West Fifty-Second street, all of which he bad brought from Chicago, except the piano, which he had bought in New York, and exhibited to him a receipt, signed by plaintiff, which will hereafter be considered; that thereupon defendant caused an inspection to be made of this furniture and piano at this house, and a search to be made in the register’s office for chattel mortgages against Mr. Joseph Schwarz; that, being satisfied as to value, and that no such mortgage was filed, and relying on the receipt signed by plaintiff, and on the affidavit of his mortgagor that he was absolute owner of the furniture and piano, which was free of all liens, he, defendant, lent Joseph Schwarz $550, taking his two promissory notes of $275 each, dated January 4, 1894, one at two and the other at four months after date, and at the same time taking a chattel mortgage from him on this furniture and piano to secure the payment thereof, which mortgage was filed in the register’s office on the same day.

Both plaintiff and defendant assume that Mr. and Mrs. Joseph Schwarz were a pair of swindlers, then residing at 244 West Fifty-Second street, as husband and wife, but each claims he is entitled to the piano as against the other. It is beyond question that the title to the piano passed in the first instance from the plaintiff to the woman, and that she gave him back a mortgage thereon, to secure payment of the purchase price ; that he neglected to file the same; and that his claim to the right of possession is made thereunder. There is no proof whatever that the woman ever transferred her ownership, right to possession, or possession of the piano to the man, except that defendant says, “I saw her once at the house when I went to look at the goods but does not give a single word that she spoke or that he or the man spoke in her presence. This slight evidence tending to show title in the man by estoppel against the woman was the testimony of a party, hence carried that question of such title to the jury. The presence of her piano in the house in which they lived as husband and wife is no evidence of either the ownership or possession thereof by the husband, and, moreover, the possession of a chattel, if there bé no other evidence of property or authority to sell from the true owner, will not enable the possessor to give good title. Covill v. Hill, 4 Denio, 323.

Now, as to the paper signed by plaintiff, which was exhibited to defendant by the man when he requested the loan, and which is as follows:

“$440.
New York, December 29, 1893.
Received of Mr. J. Schwarz four hundred and forty (by note) dollars on account of piano.
“[Signed]
Jacob Balz.”

Now, the inquiry is whether the plaintiff did by this writing confer upon Joseph Schwarz such an apparent title to or power of disposition over the piano in question as will now estop him from denying title in Schwarz when he transferred the same by mortgage to the defendant, taking in good faith and for value. This receipt is not a bill of sale, nor does it purport to convey title, nor is it evidence of a right to sell, nor does it give external indicia of the right of disposing of the same. It is simple an acknowledgment that Schwarz personally handed plaintiff a promissory note on account of a piano, but it does not , indicate to whom the piano was sold, or by whom the note was made, and, if it evidences a sale to any one, it does not indicate whether it is absolute and conveying immediate title or conditional upon the payment of the note. It does seem that this very receipt should have put defendant upon inquiry the moment he saw it, and especially as it is dated only four days before it was shown to him. The defendant’s motion to dismiss on the merits of the case was properly denied,- and the case was submitted to the jury by a charge certainly as favorable to the defendant as he could expect, and to which he took no exception; and his only request was charged. The case is a very hard one for the defendant, but the jury have found that the person under whom he claims had no title, nor had the plaintiff armed him with “any symbol of property ;” and as both plaintiff and defendant are innocent the jury saw no reason why the former should be a sufferer rather than the latter. Judgment and order affirmed, with costs.

All concur.


text:
    John Rourke, Resp’t, v. Adelina F. Regnault, App’lt.

      (New York City Court, General Term,

      Filed March 19, 1895.)

    Pleading—Answer—Frivolous.
    A denial of knowledge or information sufficient to form a belief as to the truth of an allegation is authorized by § 500 of the Code.
    Appeal from an order overruling the answer as frivolous.

      P. Q. & F. L. Eckerson, for app’lt; Thomas Nolan, for resp’t.
   Van Wyck, J.

The plaintiff’s alleged cause is for goods sold and delivered at an agreed price, and the answer “denies that defendant has any knowledge or information sufficient to form a belief as to the truth of any of the allegations contained in the complaint.” This answer was adjudicated frivolous by the order appealed from. This form of denial is expressly authorized by section 500 of the Code, which is in the exact language of section 149 of the Old Code, In Grocers' Bank v. O'Rorke, 6 Hun, 18, the answer stated “that defendant has no knowledge or information sufficient to form a belief as to the truth of any of the allegations in said complaint contained,” and the order of special term directing judgment for plaintiff, on the ground that this answer was frivolous, was reversed. This case is cited and followed in Robert Gere Bank v. Inman, 51 Hun, 97; 24 St. Rep. 160, where the answer simply contained a “denial of any knowledge or information sufficient to form a belief as to the truth of the allegations of the complaint,” and in which Follett, J., says: “A denial of knowledge or information sufficient to form a belief as to the truth of an allegation is authorized by section 500 of the Code.” This case is affirmed in 115 N. Y. 650; 23 St. Rep. 998, on opinion of the general term. The order herein appealed from, and which directed judgment for plaintiff on the answer as frivolous, must be reversed, with $10 costs.

All concur.


author: McAdam, J.

text:
    Mary E. Graham, Pl’ff, v. Benjamin Andrews, Def't.

      (New York Superior Court, Special Term,

      Filed March 11, 1895.)

    Attorney and client—Authority.
    In an action of ejectment, the complaint, verified by the plaintiff, is a written recognition of the attorney’s authority to commence the action, sufficient to satisfy every requirement of the Code provisions.
    Motion to compel plaintiff’s attorney to produce evidence of his authority.

      J. Andrews, for the motion ; T. H. Baldwin, opposed.
   McAdam, J.

The action is in ejectment, and the defendants move to require the attorney of the plaintiff to produce evidence of his authority to commence the action. Code §§ 1512, 1513. The Code provisions are taken from 3 Rev. St. (6th ed.) p. 573, section 15 of which declares that “any written recognition of the authority of the attorney” shall be deemed presumptive evidence of such authority. Under this statute, a writing signed by one of two plaintiffs on behalf of both, requesting the attorney to continue the action, was a sufficient recognition of his authority to commence it. Howard v. Howard, 11 How. Pr. 80. The Code (section 1514) provides that “any written request of the plaintiff or his agent to the plaintiff’s attorney to commence the action or any written recognition of his authority so tq do, verified by the affidavit of the attorney or any other competent witness, is sufficient presumptive evidence of such authority.” In answer to the defendants’ application, the plaintiff’s attorney swears “that the original complaint herein, verified by the plaintiff personally, was filed with the clerk of this court on the 31st day of January, 1895, and that a copy of said complaint and verification was served on the defendants personally.” The complaint, so verified, is in legal effect a written request to the attorney to commence the action, and a written recognition of his authority so to do, sufficient to satisfy every requirement of the Code provisions. This is not a proper case for requiring further evidence of authority. Code, § 1513; Carpenter v. Allen, 45 Supr. 322. Motion denied, with $10 costs to abide the event.


author: Sedgwick, C. J.

text:
    Benedict Fischer et al., Resp’ts, v. James Hetherington et al., App’lts.

      (New York Superior Court, General Term,

      Filed March 5, 1895.)

    1. Summons—Fictitious name.
    The plaintiff’s ignorance of the defendant’s name should be made to appear in the summons, in an action in the district court, in order to justify the use of a fictitious name.
    2. Attorney and client—Authority.
    In the absence of proof of special authority conferred upon the attorney, his acts in directing the levy upon, or the taking of, goods upon process are in excess of his general powers, and do not affect or subject his client to liability.
    Appeal from a judgment, entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial.

      Daniel P. Hays, for app’lts; William W. Fletcher, for resp’ts.
   Sedgwick, C. J.

The action was for the taking and conversion of plaintiffs’ goods. The plaintiffs were, according to the evidence, assignees—or, rather, purchasers—of the goods, from the former owner, one James Fitzgerald. The defendant Hetherington, soon after the assignment, brought ‘action against Patrick Fitzgerald, in a district court, to recover a certain sum of money. The summons named Patrick Fitzgerald, without more, as defendant. Service of this was made upon James Fitzgerald. In fact, James Fitzgerald owed the debt sued for in the action in the district court. James Fitzgerald did not appear in the action, and judgment was entered against Patrick Fitzgerald. The question then is, was this a judgment against James Fitzgerald ? Was he bound by it ?

Section 2884 of the Code, which relates to justices’ courts, does not, on the face of the act, make the law for the district courts of the city, but it presents a harmony of intention as to the mode in which jurisdiction of the person should be acquired. The same is true of the general provisions of the Code as to the form of summons. Section 8214, id. (chapter 596, Laws 1878), enacts that in a district court in the city of New York the summons must be addressed to the defendant by name, or, if his name be unknown, by a fictitious name. This seems not to have been repealed. Section 8214, id.; Repealing Act 1877, c. 417, subdivision for Laws of 1873. The summons in this case did not run, or did not seem to run (which is the same), against any other than a real person, whose name was given. There is a presumption that a person knows the name of his debtor, and, if in fact it be otherwise, ignorance of the name should be made to appear in the summons, to justify the use of a fictitious name. When the summons was served upon James Fitzgerald, he saw a summons and complaint against Patrick Fitzgerald; and he was justified in acting as if it were against a real person, not himself, and in not appearing in the action. I believe the law to be correctly given in the head notes of Waterbury v. Mather, 16 Wend. 611 :

“A plaintiff cannot avail himself of the statute allowing process to be issued against a defendant by a fictitious name, on the ground that his name was not known to the plaintiff, unless an averment to that effect is contained in the declaration, or is alleged by way of replication to a plea of misnomer.”

Of course, there could be no such replication, except after defendant's appearance and plea of misnomer. The cases supporting this conclusion are, in part, Farnham v. Hildreth, 32 Barb. 277; McGill v. Weil, 10 N. Y. Supp. 246; Crandall v. Beach, 7 How. Prac. 271; Aaron v. Lee, 11 Wkly. Dig. 528; Stuber v. Schuartz, 1 City Ct. R. 114; and other cases. No jurisdiction of the person, therefore was gained against James Fitzgerald by the service upon him of the summons which named Patrick Fitzgerald as the defendant.

It is supposed that James Fitzgerald was estopped from setting up that he was not the defendant, as named. If he had induced the marshal, by word or act, to believe that- he was Patrick Fitzgerald, and upon that to make the service, it might be asked whether there was not an estoppel. But, in substance, all that passed was that the marshal, in making the service, took out the paper, and said, “ This is for Patrick Fitzgerald,” while James Fitzgerald was-passive in word and deed.

Judgment having been obtained as against Patrick Fitzgerald, the marshal was a trespasser, in levying the execution issued under it upon the goods of the plaintiff that had been transferred to them by James Fitzgerald: First, the levy was as a trespass; second, the defendant had not obtained a judgment against James, which was a prerequisite of attacking the transfer to the plaintiffs. Yet, for all that, the trespass of the marshal is not a trespass of the defendant, unless the defendant aided or abetted or directed or took some part in the trespass. Guilleaume v. Rowe, is in the opinion, 48 Supr. Ct. 169, distinguished from Welsh v. Cockran, 63 N. Y 181. The latter case decides that the authority to be implied from the fact that a party causes process to be issued, and sets the proper officers in motion in the execution thereof,- is simply an authority coextensive with that conferred by the process, i. e., to do lawful acts pursuant thereto. If therefore, an officer to whom a warrant is issued, directing him to seize the goods of A., takes the goods of B., an authority so to do from the principal in the proceedings will not be implied, and without other evidence he cannot be made liable therefor. What is true as to an officer is true of an attorney. In the present case the defendant placed in the hands of the attorney the claim, telling him to collect it. That authorized the attorney to take the usual proceedings to end in judgment and execution. The levying of the execution is not within the authority of an attorney. In the absence of proof of "special authority to an attorney, his acts in directing the levy upon or the taking of goods upon process are in excess of his general powers as an attorney,' and do not affect or subject his client to liability." Welsh v. Cockran, 63 N. Y. 185, and citing Averill v. Williams, 4 Denio, 295. Upon the propositions that have been made, the defendant was not liable unless there was evidence for the jury that the defendant had promoted the levy upon plaintiffs’ goods, or had acquiesced in the illegality of the levy, with a purpose of reaping a benefit to himself. There was no proof that the defendant had directed-the levy, or had received any money under the sale. There was testimony that after the levy a clerk of the plaintiffs saw the defendant, gave to .him a letter from the plaintiffs that claimed the property as theirs, and showed him the bill of sale, and that defendant said: “ That is of no use.” I will rip the whole thing up, and the Fischers can do as they please.” The defendant denied that he had said these things. The jury were to pass upon the credibility-of-the opposing witnesses. It was for the jury to find the meaning of the words, if they were spoken by the defendant. ‘ Did the defendant mean to claim a right to dispute the validity of the bill of sale , to stand upon the proceedings, which alone could give him a right to dispute that validity; and to insist upon the rightfulness of the levy ? And did he also claim an interest in the sale under the levy? If the jury should find that he did so mean by his words, and had knowledge of the fact, then he was a co tort feasor with the marshal who levied. Welsh v. Cockran, 63 N. Y. 184. I think the disputed question of fact that has just been considered should have been left to the jury. The action of the court requires a new trial.

judgment reversed.

New trial ordered, with costs to abide the event.


author: Beekman, J.

text:
    Frank Wolff, Resp’t, v. Charles Hyass, App’lt.

      (New York Superior Court, General Term,

      Filed March 4, 1895.)

    Damages—Speculative.
    A lessee cannot recover for the breach of a covenant for quiet enjoyment loss of profits of his business, where he shows the quantity of goods he can produce and the usual profits on them, but does not show that he had a market for them.
    Appeal from a judgment entered on a verdict in favor of plaintiff.
    The causes of action alleged in the complaint are as follows : (1) That plaintiff, a manufacturer of grit or groat grain, leased from defendant the building known as No. 511 East Eighteenth street, New York, for a term of five years and three months, commencing February 1, 1892, at a rental of $550 per year, payable monthly in advance. That plaintiff entered into possession of said premises, and expended moneys to the amount of $540 in placing machinery and appliances therein, and purchased a large quantity of goods to be manufactured. That by said lease defendant agreed to furnish plaintiff with three to four horse power steam, and that the lease contained the usual covenant for quiet enjoyment. That plaintiff paid rent for said premises for the months of February, March, April, and May, 1892, aggregating $183.36. That defendant failed to furnish the horse-power steam, so that plaintiff was compelled to cease work, to ins damage. (2) That, in violation of the covenant for quiet enjoyment, defendant entered the premises, removed parts of certain walls, built another wall, obstructing light and air, caused noises by hammering and pounding, thus interfering with and causing plaintiff to stop work, and caused dust and mortar and rain to fall upon his goods, spoiling them, and injuring the machinery. This unlawful entry and acts are alleged to have occurred April 4,1892. (3) That on April 9, 1892, there was a snbstantial repetition of the acts alleged in the «second cause of action, which amounted to the eviction of plaintiff, by which plaintiff’s machinery was injured to the amount of $300 ; and he was compelled to expend $94 in removing from said premises, and resetting and repairing the machinery. That he lost fifty days’ work and custom, by which he sustained loss to the amount of $1,250, The aggregate amount for which judgment was demanded, being made up of the foregoing items, amounts to $2,368.36.

      Eugene Van Schaick, for app’lt: Charles I. Schampain, for. resp’t.
   Beekman, J.

The defendant leased certain premises in the city of New York to the plaintiff for a term of years, it being specified in the lease that they were to be used as a “grit or groat mill." The plaintiff entered into possession of the property, fitted it up with machinery and other appliances essential to the transaction of his business, and provided himself with some 800 bushels of buckwheat, out of which the product of his manufacture was made. Shortly after he commenced business operations, the defendant entered upon the premises with his workmen, and' proceeded to construct an additional story upon the building so occupied by the plaintiff. In the course of the work, holes were driven in the roof, through which the dust, debris; and rain passed, damaging the buckwheat and seriously injuring the machinery, and interfering with the conduct of the business. The defendant claimed that he had the consent of the plaintiff for his entry upon the demised premises for the purpose above mentioned. This was denied, and a fair issue was thus presented to the jury, who, by' their verdict in favor of the plaintiff, have characterized the entry of the defendant as unlawful. The grievances of the plaintiff were stated in his complaint in the form of three causes of action, one of which was for damages resulting from the failure of th'e defendant to supply him with adequate steam power according to a stipulation in that regard contained in the lease. This it is unnecessary to consider, as that question seems to have been excluded from the consideration of the jury by the trial judge. The other two causes of action embody statements óf unlawful entry upon the property, one on the fourth day of April, 1892, and the other on the 9th day of April, 1892, and the commission, on each occasion, of acts of the description above mentioned,_ resulting in damage to the plaintiff’s goods, machinery, and business. Considerable evidence was given on both sides bearing upon the question of damage to the stock and'machinery, upon which it is not necessary to comment, as we do not think there was any error in the submission of that branch of the claim to the jury. The plaintiff was entitled to recover for such injuries, and there was evidence in the case justifying the jury in awarding a substantial sum therefor. In addition to these items, the trial judge submitted to the jury another element of damage, under a charge that if, by reason of the injury to the machinery from the water and debris of various kinds proceeding from the unlawful acts of the defendant, the plaintiff was prevented from carrying on his work as he miglit otherwise- have done, such damage as lie sustained of that character which the evidence established with certainty and to their satisfaction by a fair preponderance might be awarded by them. To this charge the defendant duly excepted. The verdict of the jury was for the sum of $1,500. The defendant’s counsel thereupon moved for a new trial on the judge’s minutes on all the grounds specified in section 999 of the Code of Civil Procedure, which motion was denied, and the case now comes before us on appeal from the judgment and the order denying the above motion.

We do not think that there was any evidence in the case upon which the jury could determine the amount of damage to plaintiff from the interruption of his business, and that the exception to the charge of the trial judge on this point was well taken. Before the trial, a bill of particulars was furnished by the plaintiff, stating the items of his claim for damage. Among others, not material to the discussion, it contained the following;

“Prevented from operating and working in said building for the space of fifty days, caused by the acts of the defendant in interfering with the premises Ho. 511 Bast 18th streét, and cutting off the use of the steam, including outlays and profits during said term, $1,250.”

The claim was therefore really for loss of profits, and the only evidence in the case bearing upon this item of loss, or in any way concerning the pecuniary damage for interference with plaintiff’s business, was given by the plaintiff, who testified that if the steam power was right he could grind from 125 to 150 bushels a day, and that his profit on the product was from twenty-five to thirty cents a bushel. It is to be noticed that the court substantially withdrew from the consideration of the jury any question of damage resulting from the failure to supply steam power, and the jury was invited to estimate the damage from inability to operate the business solely as the resultant of the unlawful acts of the defendant in connection with the trespass. The element of profit testified to by the plaintiff was entirely too speculative and uncertain to justify any award on that ground. Loss of profits consequent upon a tort, as well as a breach of contract, are allowed, provided they are such as might naturally be expected to follow from the wrongful act, and are certain both in their nature and in respect to the cause from which they proceed. Schile v. Brokhahus, 80 N. Y. 614-620; Griffin v. Colver, 16 N. Y. 489; Marquart v. La Farge, 5 Duer, 559. There was no such certainty in the case at bar. There was nothing in the proofs showing or tending to show that the defendant had any appreciable custom, or that he would have had any market for the 150 bushels of grain which he stated to be the grinding capacity of his mill per day, or that there was any reasonable probability that he would have been able to earn any such profit from his business, or thathehad ever made any profit from his business at that place or elsewhere prior to the acts complained of. Under these circumstances there was nothing before the jury from which they could, within the rules, intelligently determine and award any sum for loss of profits or other injury resulting from the interruption of the plaintiff’s business. The bill of particulars furnished by the plaintiff imposed upon him a limit of recovery for all damages submittéd to the consideration of the jury other than those claimed under the item for loss of profits. That limit is the sum of $742.50. The excess of the verdict over this sum may be taken to represent the conjectures of the jury in respect to damage from interruption of business, and the measure of the influence upon them of the erroneous charge. Under these circumstances, we think that the case is one in which the court may properly afford to the plaintiff the opportunity for consenting to a reduction of the verdict. Vail v. Reynolds, 118 N. Y. 297; 28 St. Rep. 707. The plaintiff may within twenty days stipulate to reduce the judgment in the sum of $757.50, and, if such stipulation is filed, the judgment so reduce will be affirmed with costs ; but, if not filed, the judgment should be reversed, and a new trial granted, with costs.

All concur.


author: Gildersleeve, J.

text:
    Clara H. Price, Resp’t v. Stephen M. Ga Nun et al., App’lts.

      (New York Superior Court, General Term,

      Filed January 21, 1895.)

    Negligence—Opticians.
    Opticians, in accepting a prescription and undertaking to fill it, assume a skill adequate to and the care necessary for, a-competentand proper completion of lite work, and are liable for the injuries resulting from their negligence.
    Appeal from a judgment entered on a verdict and from an order denying a motion for a new trial.

      George D. Beattys, for app’lts; James O'Neill (William T. Birdsall, of counsel), for resp’t.
   Gildersleeve, J.

the regular course of business, undertook to make and deliver to the plaintiff a pair of eyeglasses in accordance with a certain prescription. The plaintiff accepted the glasses, in ignorance of any defect, paid the defendants therefor, and commenced their use. The judgment herein, now before us for review, is in favor of the plaintiff, and against the defendants, and awards to the plaintiff $750, as damages for personal injuries arising from the alleged negligence of the defendants in the construction of the eyeglasses in question. The basis of the action, as alleged in the complaint, is defendants’ negligence. The answer is a denial of the negligence, and sets up as a separate defense, an accord and satisfaction of the claim set forth in the complaint.

The point urged by the appellants that the only claim against defendants must rest upon “a sale coupled with an implied warranty” is not well taken. The plaintiff very properly grounded her cause of action on the negligence of the defendants. The complaint clearly sets forth a cause of action. If the plaintiff sustained injuries that flowed from a defective or erroneous construction of the glasses by defendants, they were guilty of actionable negligence,—guilty because they committed a breach of duty they owed to the plaintiff. The gist of the action,' as alleged in the complaint, is the failure of defendants to exercise that reasonable decree of skill and caution which under the circumstances, might have avoided the injury. 4 Wait, Act. & Def. p. 656; Kahl v. Love, 37 N. J. Law, 5, 8; Railroad Co. v. Bingham, 29 Ohio St. 369; Cow. Treat. (7th Ed.) § 290; Carpenter v. Blake, 75 N. Y. 12.

The plaintiff’s claim falls within the rule laid down in Bellenger v. Craigue, 31 Barb. 534, where it was stated as follows:

“The law implies a promise on the part of the surgeon that he has ordinary skill, and that he will execute the business intrusted to him with ordinary care and skill. If he fails in this duty, he is liable in damages to the .persons who employed him.”

To the same effect is the case of Beckwith v. Oatman, 43 Hun, 265; 5 St. Rep. 445.

This principle is most recently invoked in the case of Isham v. Post, 141 N. Y. 100; 56 St. Rep. 56, where the general' rule is stated as follows:

“IE a person’s situation or employment implies ordinary skill or knowledge adequate to the undertaking, he will be responsible for any losses or injuries resulting from the want of the exercise of such skill or knowledge.”

It will not be denied that the business of opticians requires-special knowledge and skill, and also great caution and prudeneg. The defendants, in accepting the prescription from plaintiff and undertaking to fill it, assumed a skill adequate to, and the care necessary for, a competent and proper completion of the work. They undertook to exercise due care and skill in preparing the glasses. If they failed in this duty, they are liable for the injuries-resulting from their negligence.

Earl, J., in Ehrgott v. Mayor, etc., 96 N. Y. 281, says that:

“The best statement of the rule is that a wrongdoer is responsible for the natural and proximate consequences of his misconduct, and what are such consequences must generally be left to the determination of the jury.”

• The jury, under proper instructions from the learned judge, presiding at the trial, upon competent and sufficient evidence, found that the defendants were guilty of negligence in the construction of the glasses. This finding was fully warranted, and should not be disturbed. The damages awarded are not excessive.

As to the alleged accord and satisfaction, set up as an affirmative defense, if it can be said to be such as the law recognizes, the evidence was insufficient to establish this defense. When we give to Mr. Ga Nun’s statements of what transpired at the interview at which it is claimed the alleged agreement of settlement was made the broadest and fullest significance in support of defendants’ contention on this point, they fail to show an accord and satisfaction. We think the jury was fully justified in finding that the plaintiff’s injuries were the direct result of the wearing of the glasses which were negligently constructed by defendants. The jury was fully and faily instructed by the court on all the questions of law affecting the case, and we find no error in the rulings on question of evidence.

The judgment and order appealed from should be affirmed,, with costs. All concur.


text:
    Nisbet V. Davenport, App’lt, v. George B. Hulme et al., Resp’ts.

      (New York Superior Court, General Term,

      Filed March 4, 1895.)

    Contract— Yalidity.
    A contract by the bookkeeper of a corporation to disclose its financial condition to another, though a stockholder, is void.
    Appeal from a judgment dismissing the complaint.

      David Gerber and R. H. Landale, for app’lt; Francis L. Wellman, for resp’ts.
   Beekman, J.

The complaint alleges that in the month of May,, 1892, the defendants employed Joseph M. Davenport to perform certain services for them, for which they agreed to pay him the stun of $20,000; that the services were performed by him in so far as lie was perrhitted so to do by the defendants, but that they have failed to pay him the sum so agreed upon for his compensation ; and that the claim therefor was duly assigned to the plaintiff. The defendants answered, putting in issue the validity of the alleged contract. Upon the trial, at the close of the plaintiff’s case, a motion was made by the defendants for a dismissal of the complaint, which was granted, and an exception was taken to this ruling by the plaintiff, who now appeals from the judgment entered thereon. The facts of the case, briefly stated, are as follows; At the time of the alleged contract the said Davenport was a bookkeeper in the employ of the National Cordage Company, a corporation doing a business of great magnitude, and having a capital of $15,000,000. In that capacity,' and in necessary connection with the proper performance of his duties, the transactions •of the company and its financial operations came under his observation. He kept the books in which the entries relative to .such matters were made, and the financial condition of the com-’ pony was thus revealed to him. From the knowledge thus obtained it became apparent, as he claims, that although the company had been declaring large dividends, from time to time, for several years, such action was unwarranted, as during the same period losses had been incurred amounting to many millions of dollars. It was knowledge of great financial importance, and calculated to produce a most injurious effect upon the company should it be disclosed. Of this Davenport was quite sensible. He also perceived, under certain circumstances, it had a large pecuniary value, enhanced by the fact that, with the exception of the •officers of the company, he was in the exclusive possession of the information. He proceeded to profit by the situation in the following way : The defendant Hulme had advanced a large amount •of money, some $4,000,000, to the company upon its Ronds and stock. Davenport opened communication with him, and having imparted enough information to excite serious alarm, without surrendering the commodity he came to sell, an agreement was entered into by which the particulars were to be disclosed, which was reduced to writing, signed by Davenport, and delivered to Hulme. This extraordinary document reads as follows:

“ Upon payment to me of twenty thousand dollars and selling short for me a/c 500 shares of the National Cdge. Co. at your risk, I agree to deliver to you or your order the original earnings and losses ending Oct. 31st, ’91, contained in the books of the Natl. Cdge. Co. now in my possession, and make such affidavit you may call upon me to make in support of the figures I undertake to furnish you. I also further agree not to give said figures to any other parties besides yourselves, and am willing to make an affidavit to that effect.”

The affidavit thus referred to was subsequently made ,and delivered to Hulme. It purported to verify the statement which was the subject of the contract, and referred to it as annexed. It was not, however, so annexed, but was thriftily retained by Davenport until he should receive his $20,000. He was willing, however, to stimulate the eagerness of Hulme for a speedy consummation of the bargain by the following remarkable oath, which he embodied in his affidavit:

“ And said Davenport swears that he has not spoken to any one or by an action or manner in any wise divulged the information contained in said books of account, or allowed a copy of the figures in said profit and loss account referred to, to any person or persons; and, further, that he will not divulge or reveal, or disclose or give, either by writing or in any other manner, the figures or accounts of said company to any person or persons, in other than to the holder of this affidavit, after the same has been due form executed and sworn to. Davenport further says that he has no other memorandum, reference, copies of .figures or accounts, statements, or any other information, other than, the statements or copies of figures or memorandas to this affidavit annexed. And deponent solemnly swears that upon the delivery of this affidavit, and the said copies, memorandas, etc., referred to, he parts with all written or other information, except that which he might recollect of his own mind and not otherwise. And that on this day, so far as he knows or is informed, he is the only individual, outside of the National Cordage people themselves, who is the possessor of and enabled to give the information and figures stated in the papers hereto annexed and in this affidavit.”

The preliminaries having been thus satisfactorily adjusted, a date was fixed for the consummation of the bargain, but in the meantime the matter had come to the knowledge of the officers of the Cordage Company, and the vigorous steps they took to prevent the disclosure proved effective. Although the statement was tendered to Hulme, accompanied by a demand for the $20,000, he refused to proceed with the transaction or to pay the money, and this action was accordingly brought to enforce payment. We have no hesitation in condemning the agreement on which this suit is brought as absolutely void and unenforceable, and approve of the action of the trial judge in dismissing the complaint on this ground. It involved a clear betrayal of trust by Davenport, and was utterly sordid and conscienceless in its purpose and conception. He was an employe of the company, holding a place of trust and confidence. The information he had obtained in the course of the performance of his duties belonged to the company, and was not his to use against his employer or to dispose of for his own advantage. When he agreed to barter it away in the manner proposed, he not only violated an obligation to his employer springing out.of the contract of employment and the relation in which he stood to the company, but the whole transaction was, in foro conscientice, flagitious and indefensible. The law has sternly set the seal of its condemnation upon such acts. It reads into every contract of service an obligation on the part of the servant to be faithful to his employer in respect to matters within the scope of his duties, and pronounces any violation of such duty to be a breach of contract, for which the servant may be discharged. The betrayal to others of facts which have come to his knowledge in the house of his employment, and which are confidential in their nature, is within this principle, which applies with peculiar force to the office of a bookkeeper. His employer is compelled to confide to him almost every 'detail of business venture and financial condition. The knowledge he thus acquires is usually of such a character as to expose the employer to loss, and possibly serious disaster, if promulgated to others. The obligation, therefore, is-proportionately great to preserve inviolate the confidence reposed in him which the performance of the' duties for which he has been employed has rendered necessary There doubtless are cases in which the prevention of fraud or other service of the ends of justice creates exceptions to the rule, but, as the case at "bar does not come within any such modifying principle, we do not consider it profitable to discuss them. A violation of duty of the character above mentioned also involves an element of moral turpitude. Railway Co. v. Lythgoe, 2 Lown. M. & P. 221. In that case, the defendant, while in the plaintiff’s employment, secretly communicated details of the business which he obtained from the books to a rival company, and upon being discovered was discharged. The court, in refusing him judgment for his salary, characterized his act as “ moral misconduct." But authority is unnecessary to support so plain a proposition. The consideration, therefore, for the agreement in suit was illegal, and the contract declared upon never had any legal inception. Woodstock Iron Co. v Richmond &. D. Extention Co., 129 U. S. 643; Devlin v. Brady, 36 N Y 531. In the latter case the court said (page 534):

“ It is a recognized and firmly-established maxim in the law that ex turpi contractu actio non oritur, and no -person, so far back as the feudal ages, was permitted by law to stipulate for iniquity."

The contention that the agreement was relieved of the taint of illegality because Hulme, as a stockholder, was entitled to the information which was the subject of barter, is without legal support. Assuming the existence of the right, it by no means follows that Davenport was entitled to give it. He was the servant of the company, not of the stockholders. He was neither employed nor could he be discharged by them. His whole duty was to the corporation represented by the directors, who managed and controlled the-business, who alone were entitled to exercise the corporate powers,, and to whom he was solely, responsible for the proper discharge-of his functions. Such an agreement as the one in suit, though made with a stockholder, is as much within the rule of prohibition as if entered into with a stranger. Stockholders must seek the-information they are entitled to through the proper channels, and not by corrupting the employes of the company. It is idle to follow the counsel for the plaintiff in the pursuit of some theory upon which to distinguish this case and sustain a recovery. The case is too plain. The plaintiff’s assignor had no other thought than his own profit, and he drove as hard a bargain as he could in his attempt to make the most out of a shameless act. The agreement sued upon presents itself as a mere bargain for the betrayal of a trust, without qualifying circumstances, which the law repudiates, and which no court of justice will enforce. Judgment affirmed, with costs.

All concur.


text:
    Cornelius George Crowley et al., Resp’ts, v. Mary Murphy, App’lt.

      (New York Superior Court, General Term,

      Filed March 4 1895.)

    1. Ejectment—Pabties.
    In an action of ejectment brought by the grantee in a void deed in the-name of the grantors, the complaint is defective, unless all the grantors named in the deed are made parties plaintiff.

      2. Same—Pbooe.
    Though not alleged in the answer, the defendant may prove an assessment lease of the premises under the general denial.
    Motion for a new trial on exceptions, ordered to be heard at general term in the first instance.

      F. J. Mather, for pl’ffs; David B. Ogden, for def’t.
   Sedgwick, C. J.

The action is of ejectment. Mr. Joshua C. Sanders was a grantee in a conveyance of the lands in question, at a time when the lands were held adversely to his grantor, as the complaint alleged, and the deed was therefore void. He brought this action under section 1501, Code Civ. Proc. That section is: Ejectment “may be maintained by a grantee * * * in the name of the grantor, * * * where the conveyance under which he claims is void because the property was held adversely to the grantor.The complaint alleged in a certain manner, which will not be here examined, facts sufficient, on the face of the pleading, to make a cause of action under the statute. The complaint averred that on the 31st July, 1882, the said Ellen Daly and Cornelius George Crowley, the plaintiffs herein, duly made a deed of the said lot of land, etc., unto Joshua C. Sanders, granting unto him the same, etc. It is not contested that in such an action all the grantors in the void deed must be joined as plaintiffs. This is not a question of misjoinder of parties, because under the statute the conditions of the statute must be regarded, to make any cause of action whatever. If there be three grantors, two of them only, when made plaintiffs, cannot be used to sustain the action under the statute. On the trial the plaintiffs offered in evidence the deed to Mr. Sanders. It was objected to. It purported to be a conveyance of the premises in question, made by “Cornelius George Crowley, only child and heir at law of Cornelius Crowley, deceased, and Julia Fannie, his wife, and Ellen Daly, to Joshua C. Sanders.” The objection was that “Julia Fannie” appeared to be a grantor under the statute, and that the action could not be sustained -without her being made a plaintiff, as the statute gave the action if all the grantors were made plaintiffs. It may here be said that the statute by “grantors” means those who appear to be grantors in the void deed. It may be that, in a case where an apparent grantor has in fact no estate, that may be alleged and proved, and permit a recovery ; but first the statute must be observed, and all the grantors must be made plaintiffs. The reason for this is direction of the statute, which must be obeyed. The argument of the learned counsel for plaintiffs is that “Julia Fannie” appears by proof to have had no estate and no interest but that of an inchoate right of dower. In my view that does not conclude the question.' It must also appear that she is not one of the grantors on the face of the void deed. In the deed the only words, so far as the record before us appears, that would prevent. her appearing as a grantor, are, “and Julia Fannie, his wife.” These words are only descripiio personae. Without them she-would appear to convey her estate as tenant in common with her other grantors. With them she is only identified as a wife in a part of the deed that is not a granting part. Of much the same? land of deed Judge Grover said in Cox v. James, 45 N. Y. 561:

“There, is no more reason for a presumption that Mr. Maxwell was the owner, and that Mrs. Maxwell united with him in the deed for the purpose of extinguishing her inchoate right of dower, than for a presumption she -was the owner, and. Mr. M., her husband, united in the deed for the purpose of extinguishing his interest as tenant by the curtesy. As above .remarked, the only legitimate presumption was that they were equal owners in common of the land.”

I therefore think that the complaint should have been dismissed, for the reason that there was a material variance from the-allegations of the complaint, and that the action could not be maintained without joining Mr. Crowley as plaintiff.

On the trial the defendant’s counsel offered in evidence a lease made by the mayor, etc., of New York to Isaac 0. Ogden of the premises for the term of 1,000 years from 20th October, 875. The plaintiffs’ sole objection to this was that it should have been put in the answér, and this objection was sustained. I do not. think the objection can be sustained. “This action lies for the recovery of the possession of real property in which the lessor of the plaintiff has the legal interest and a possessory right.” 1 Chambers, Eating, 187. “A remainder-man or reversioner cannot support this action while the right of possession is in another.” Id. 190. “When the title of the real plaintiff in ejectment is controverted under the general issue, he must prove (1) that he had the legal estate in the premises at the time of the demise laid in the-declaration ; (2) that he also had the right of entry," 2 C. E. S. 804. A defendant need not set up specifically in the answer-those facts which merely refute the claim of a right of entry. A landlord has not the right of entry while a term is outstanding which prevents his having that right. When the term is ended it is otherwise. The term created by the corporation lease binds, him through the obligations of the law, and as long as it lasts he has no right tó enter. The character of the consequences from a lease is not different from that of those under a conveyance in fee.. He has no right to enter. Of course, this is not at variance with the proposition that a lessee cannot deny, the title of the landlord, and cannot, through the term, begin an adverse possession that-might result in a title. That does not allow the landlord, under his title, entering upon his lessee. Nor does it make any difference that his right to enter has been taken away by a competent lease to some one else than the defendant The lease destroys a right to enter, which he must prove, whoever may be the defendant. I therefore think that the assessment leases were admissible as evidence. 1 wish to notice the situation of the case at the trial The plaintiffs were bound to prove that the deed to Mr Sanders was void. They therefore, under the circumstances, showed that- the defendant was in adverse, possession, and were further bound to show she claimed to hold under some specific title,

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


author: Pryor, J

text:
    Louisa A. Richardson, Pl'ff, v William Harms, Def't.

      (New York Common Pleas, Special Term,

      Filed February, 1895.)

    Dower—Action against husband’s grantee.
    The sufficiency of land remaining of the husband's estate to satisfy all claim of dower is no answer to an action for dower out of the land of the husband s alienee.
    Demurrer to a defense set up in the answer.

      Wm. C. Campbell, for pl ff; Isaac L. Miller, for def't.
   Pryor, J

In an action for dower, the complaint alleges a marriage, seizin and death of the husband, his conveyance during coverture without the plaintiff 's assent, and ownership of the land by the defendant. The prayer for judgment is that the plaintiff recover one-third of defendants property as her dower and one-third of the rents and profits thereof since the commencement of the action. After denial of material allegations of the complaint, the answer advances as a “separate and distinct defense,” that the conveyance by the husband was with full covenants of warranty; that he left other real estate “of sufficient value to pay and provide for any claim or right of dower which plaintiff had, not only in and to the same, but in and to the premises mentioned and de scribed in the complaintand that subsequently to his death, by an instrument under, seal and in consideration of $50,000, the plaintiff “released any and all her right, title, and interest, dower, and right of dower which she had or claimed to have in arid to all the real property of which the said Benjamin Richardson died seized.”

The plaintiff demurs to the defense for insufficiency in substance. The husband not dying seized of the land in question, it is obviously not within the terms or operation of the release. Morever, it is not apparent that the release was to tenant in fee or for life, or to remainder-man, reversioner, or equitable owner; and unless-to such, it is ineffectual to bar dower, Elmendorf v Lockwood, 57 N Y 322, 326, 330 : Bank v Thomson, 55 id. 7, 12. Upon the argument, therefore, counsel for the defendant prudently abstained from pressing the release as an answer to the action. Neither personal representative nor heir or devisee of the husband is a party to the litigation. That the plaintiff may realize all her dower out ■of the husband’s estate is therefore but the futile statement of the defendant, who, of course, is incompetent either to offer, or, in the absence of the owners of that estate, to compel its appropriation in discharge of the incumbrance on his 'property. A widow shall be endowed of the third part of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage.” 1 Rev St. p. 740, § 1. “No act, deed or conveyance by the husband, without" the assent of his wife, shall prejudice the right of his wife to her dower nor preclude her from the recovery thereof.” Id. § 16. “If during the life of the husband his land has been alienated, and if, when his widow seeks the assignment of her dower the land is held in several parcels by different persons her dower shall be assigned m each parcel separatively ” Thomas v Hesse, 84 Mo. 13. Indeed the answer in question admits the plaintiff’s right to dower in the land of the defendant but avers that sufficient property remains of the husband’s estate to respond to her claim in respect of all the realty of which be was seized. Does the fact alleged in avoidance nullify the right conceded? The methods by which the widow’s right may be defeated are familiar in the books : but it is nowhere suggested that the matter of this answer is pleadable in bar of dower. In reason the lien on his land is not discharged by the incumbrance on other lands, Masterson v, N. Y. C. & H. R. Railroad Co.. 84 N. Y. 247, 255, and, no matter how ample those other lands to satisfy the claim of dower, the right of recourse to this land still subsists. Plaintiff’s right in defendant’s land not being affected by the fact of other resources for her dower, the answer is no defense to the action, and the demurrer is well taken. The principle of the cases adduced by defendant was nor. asserted as destructive of the right ■of dower in the particular land, nor advanced as an answer to an action for such dower, but was adopted only as an expedient by which the right might be enforced with the least hardship and the greatest equity. The right established, it may well be just and in ease of all parties that the dower should be assigned of the husband’s estate, liable in any event as the ultimate recourse, rather than from the land of an alienee who, under his covenants, is entitled to indemnity. But this is a disposition of remedial procedure, and is practicable only when, all in interest being present, the decree may be of binding efficacy. Neither the representatives nor successors of the husband being parties to the litigation, how can the court enforce an assignment of dower out of their estate? Mechanics Savings Bank v Selye, 83 Hun, 282 ; 64 St. Rep. 728. Should they be brought in, then, after plaintiff vindicates her right by the determination of the issues in hey favor, the court, in exoneration of defendant's land, might, by the interlocutory judgment, direct the dower to be assigned out of the husband’s estate. Demurrer sustained.


author: Bookstaver, J.

text:
    John Regan, Pl’ff, v. Christian E. Forst et al., Def’ts.

      (New York Common Pleas, Special Term,

      Filed January, 1895.)

    1. Mechanic’s lien—Improvements made by lessee.
    Where the owner of premises agrees, before the execution of a lease, tho the lessee may make certain improvements, the cost of which is to be de ducted from the rent, the persons employed by the lessee to do the work acquire no lien as against the owner.
    2. Same—Consent.
    Where the lease provides that no repairs should be made without the written consent of the lessor, a recital therein that the premises are intended to be used for a purpose for which they are then unsuitable, and that all the improvements made by the lessee should, at the expiration of the lease, become the property of the lessor, is not a consent on his part that the lessee should make improvements.
    Action to foreclose a mechanic’s lien.

      Seymour & Hopkins, for p’ff; Lachman, Morgenthau & Goldsmith, for def’t Hudson Realty Company; William Henry Knox, for def’t Crotty.

   Bookstaver, J.

None of the parties other than those above named appeared in the action, which was brought to foreclose a mechanic’s lien on the premises on the northwest corner of Third avenue and 118th street. The only party really defending was the Hudson Realty Company, who was the owner of the premises in question. On or about the 12th day of April, 1893, this company made a lease of the premises to the defendant Christian B. Borst for a term- of five years from' the first day of May, 1893, at a rental of $5,000 a year. Before the occupation of these premises by Borst, they had been used for a hat store. The lease contained the following provisions : (1) The building was to be used as a liquor store and hotel; (2) the rent was to be paid in equal monthly payments in advance, on the 1st day of each month, amounting to $416.66; (3) the company agreed to put the roof on the said premises in good condition, and the tenant agreed to keep the demised premises, both inside and out, in good order, condition and repair; (4) the tenant agreed to comply with all present and future state and city building and sanitary laws, and all city ordinances and regulations of the board of health, or of any other department or authority of the municipality or of the government of the city of New York, during the term of the lease, at his own expense, and to replace all glass broken, with glass of equally good quality, at his own expense ; (5) a further provision as follows: “It is further understood that at the expiration or other termination of this lease all improvements then on said premises are to be and remain the absolute property of the party of the first part, in the same manner as if the same had been made by it(6) a provision that said Borst would “not assign this lease, nor let or underlet the whole or any part of said premises, nor make any alterations therein, without the written consent of the said party of the first part, under the penalty of forfeiture and damages.” Contemporaneous with the negotiation for the lease, Borst, the intending lessee, and the Hudson Realty Company, the-owner, through its officers, had negotiations in relation to putting: in a new store front; and it was finally agreed between them, before the lease was executed, and independently thereof, but as art. inducement to it, that the lessee should be allowed to put in a new store front, for which the realty company would pay by making an allowance upon the lease. This is the only alteration which, in my opinion, from the evidence, was ever agreed to or consented to on the part of the landlord, and this was fully paid by making the allowance agreed upon. All of the other work done by Regan and Grotty was done under agreements with Borst. There is no claim that any express agreement for any of the other work was. given by the company or its officers. There was no attempt, made to show that any written consent was ever given by the landlord to any of these alterations or improvements; nor do I think the evidence offered by the plaintiff bears out their contention that the landlord, through its officers, ever consented to any of them. Nay, more, I am not convinced from the evidence that any of the officers of the company knew of the alterations and improvements that were made by Borst’s direction until the work had. been done. The testimony of the plaintiffs as to this is extremely vague and uncertain. It only goes to the extent of showing that on two or three different occasions one or more of the officers of the company were at the place. It is even admitted that on one or more of these occasions the officers did not go into the building at all. On another occasion it is claimed that they did; but these officers, being produced, expressly testified that, they did not see or know of any of the improvements being placed upon the building other than the store front. On this state of facts the Hudson Realty Company might, under certain circumstances, be liable to the plaintiff for putting in the store front; but I think the evidence shows that as to that work the landlord entered into an agreement with Borst to do that work, for which it. was to pay in a certain way, and that therefore, as to that, Borst became the principal contractor with the owner, and as he was-paid in the way provided for in that contract, before any lien was filed, the payment was made in good faith to Borst, and if he did. not pay his subcontractor the company is not liable. This contract or agreement was entered into before the lease was executed, and independently thereof. It therefore stood by itself, and was to be performed according to its terms. But even if the relation of landlord and tenant existed, it does not exclude other relations between the parties relative to the same property. In Havens v. West Side E. L. & Power Co., 44 St. Rep. 589, affirmed 49 St. 771, it was held that the assistance of the owner in the erection of a building upon his land, but as an agent of the tenant, was not. alone sufficient to charge him with consent within the intent of the statute. The tenant in that case was pro hoc vice the principal contractor, and after his claim for work was, satisfied there was no-basis for a lien. ■

There is no proof that-.the owner became liable under section 2. of the act, by reason of collusive payment for the purpose of avoiding the provisions of the act, or in advance of the terms of the contract. The argument that the company is in any event liable for $10, the difference between the amount it agreed to allow Borst and the amount he agreed to pay, is without foundation. If the principal contractor pays his subcontractor more than he receives from the owner, the latter’s liability cannot thereby be extended beyond the contract price.' As to the other alterations, the lease forbids them to be made on the demised premises without the written consent of the lessor, and, as before stated, no evidence of such consent was given. It cannot be said that the recital in the lease that the premises were to be used as a liquor store and hotel, coupled with their then unsuitable condition for such a use, and the latter clause reserving to the lessor the absolute property in all improvements upon the premises at the expiration or other termination of the lease, constituted a written consent, because such an interpretation would give to one portion of the written instrument an effect destructive of another in a case where there is no inevitable or scarcely an apparent conflict. The evident meaning of the lease is that the landlord therein gives consent that the property be used as an hotel and liquor store, but limits the extent to which its property shall be changed to adapt it to its new purposes by providing in advance that such improvements shall become a part of the fee, but shall not be made unless expressly assented to in writing. Schmalz v. Mead, 125 N. Y. 188; 34 St. Rep. 779, and Miller v. Mead, 127 N. Y. 544 ; 40 St. Rep. 177, may be regarded as leading cases on one branch of the mechanic’s lien law, but they do not involve the relation of landlord and tenant. In them vendors were held liable for work done on behalf of vendees where the deed was not recorded and the title was not to pass until the completion of the building. In Cowen v. Paddock, 137 N. Y. 188; 50 St. Rep. 386, it was held that the facts from which the inference of the consent may be drawn must be such as indicate at least a willingness on his part to have the improvements made, or an acquiescence in the means adopted for that purpose, with knowledge of the object for which they were employed. In Spruck v. McRoberts, 139 N. Y. 193; 54 St. Rep. 461, it was held that the contest of the owner to the erection of the building could not be implied from the fact that, knowing what the mechanic was doing, he failed to forbid or prevent him.

In Burkitt v. Harper, 79 N. Y. 273, the statute, which was the Queens county statute of 1862, was somewhat different from the present mechanic’s lien law, as it permitted a lien for work done “ by virtue of any contract with any person permitted by the owner of such land to build, repair,” etc., and in both the Burkitt case and the case of Otis v. Dodd, 90 N. Y. 336, the lessees, as a part of the consideration of the letting, expressly agreed to erect the buildings; they were entire buildings, and were even to be re-erected by the tenant in case of de struction by fire. In the lease given in this case, the fire clause is the ordinary one, and this' case is broadly distinguished from the cases last cited by the failure of proof to show knowledge even, not to say anything of consent. In Havens v. West Side E. L. & Power Co., 49 St. Rep. 771, the court says:

“ It does not seem to us that it could possibly have been the intention of the legislature to make the owner of land which he has leased for a long term of years liable for improvements made upon this land, for purposes of trade, by his tenant. The mere fact that he may know that the tenant contemplates making certain improvements, or applying the property to certain purposes, certainly cannot make the owner liable for the moneys expended by his tenant in the doing of such work.”

See, also, Ottiwell v. Muxlow, 24 St. Rep. 38; McClintock v. Criswell, 67 Pa. St. 183.

In addition to what has been said, attention may be called to the fact that the owner sought to be charged in this ease was a corporation, which could only act through its officers, and that the duties and powers of none of those officers were proved upon the trial. As to the secretary, if he knew of all of these improvements, and consented thereto, I do not think I could hold, in the absence of proof, that he could bind the company. And so, too, of the treasurer, because I do not think it can be contended that such officers could make contracts for improvements of the character under consideration without express authority from the corporation so to do, as it cannot be implied from the nature of the duties pertaining to such officers. The power of the president of the company to make such contracts may perhaps be presumed, but in this case it is shown conclusively that he had no knowledge, and therefore could give no consent, within the meaning of the statute. Under all the facts of this case, I think, therefore, after a careful consideration of the facts and the argument of counsel, that the complaint should be dismissed, with costs to the defendant the Hudson Realty Company.


author: Daly, C. J.

text:
    Herman Goossen, Pl’ff, v. Kate M. Goossen, Def't.

      (New York Common Pleas, Special Term,

      Filed January, 1895.)

    Pleading—Reply.
    A plaintiff cannot set up, in a reply, a counterclaim arising out of matter not connected with the cause of action pleaded in the answer as a counterclaim.
    Motion to strike out a counterclaim set up in the reply against a counterclaim in the answer.

      Langbein Bros. & Langbein, for the motion; McKoon & Luckey, opposed.
   Daly, C. J.

not arise upon any transaction pleaded in the answer, but upon an independent cause of action in favor of plaintiff against defendant, which would not be barred by an adjudication upon the issues raised by the answer. Section 514 of the Code prescribes what a reply must contain, viz.:

“ Where the answer contains a counterclaim, the plaintiff, if he does not demur, may reply to the counterclaim. The reply must contain a general or specific denial of each material allegation of the counterclaim controverted by the plaintiff, or of any knowledge or information thereof sufficient to form a belief; and it may set forth in ordinary and concise language, without repetition, new matter not inconsistent with the complaint, constituting a defense to the counterclaim.”

This provision does not authorize a counterclaim, in express words, nor is any authorized by implication from the permission granted to plead “ new matter constituting a defense to the counterclaim,” for new matter constituting a defense is distinguished in the Code from new matter constituting a counterclaim. Thus, in section 500,' prescribing the contents of the answer, it is provided:

“ The answer of the defendant must contain (1) A general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief. (2) A statement of any new matter constituting a defense or counterclaim, in ordinary and concise language, without repetition.”

And in section 507 it is provided:

“ A defendant may set forth in his answer as many defenses or counterclaims, or both, as he has, whether they are such as were formerly denominated legal or equitable. Each defense or counterclaim must be separately stated and numbered.”

Therefore, the omission of the term “counterclaim” from the prescribed contents of the reply must be taken as conclusive of the intention of the legislature that counterclaims should cease with the answer, and that the plaintiff should be left to a new action upon any independant cause of action in his favor. If the plaintiff were permitted to reply a counterclaim upon an independant cause of action, as against a counterclaim set up in the answer, then it would seem but just to allow the defendant, upon the trial, to defend by counterclaiming upon an additional cause of action in his favor; yet this practice was discountenanced by the supreme court. Breed v. Padgett, 14 Wkly. Dig. 574. I am of opinion that if the plaintiff has an offset to the defendant's counterclaim, growing out of the same transaction which constitutes the basis of the defendant’s counterclaim, and which would be barred by an adjudication in favor, of such counterclaim if the latter were the subject of an independent action, then in such case the offset might be pleaded as a full or partial defense in the reply, for the plaintiff is compelled to this course by the defendant's claim. For that reason was the counterclaim allowed in Rider v. Foggan, 37 St. Rep. 438, growing out of the partnership dealings which defendant set up by way of counterclaim in the answer. I am aware that in Miller v. Losee, 9 How. Prac. 356, it was held that the plaintiff might reply another cause of action as a set-off and defense to the defendant’s set off, and that that decision was followed in Stewart v. Travis, 10 How. 148, and in Hall v. Hall, 30 How. 51, and that the same view is taken in 1 Rumsey, Prac. 383; 2 Wait, Prac. 442, and in 2 Whitt. Prac 197; but the con trary opinion was expressed by Barrett, J., in Hatfield v. Todd, 13 Civ. Pro. R. 265, following Mc Adam, J., in Cohn v. Husson, 66 How. 150. With this conflict of authority upon the question involved, it is necessary to recur to the language of the Code, and adopt a construction which seems to accord with the intention of the framers of the law, which, for the reasons above given, I infer to be against the right of a plaintiff to counterclaim upon a cause of action unconnected with the cause of action pleaded as a counterclaim by defendant. Motion to strike out counterclaim from reply granted. No costs.

Motion granted, without costs.


text:
    Henry A. Bogert, Pl’ff, v. Elsworth L. Striker et al., Def’ts.

      (New York Common Pleas, Special Term,

      Filed January, 1895).

    Mortgage—Reissue after payment.
    A mortgage, though it may have been paid, may, on a valuable consideration, be kept alive for other purposes, where the rights of creditors and other persons have not intervened.

      W. T. Schley, for def’t Bliss; Abm,. Elkus, for def’t Robert.
   Daly, C. J.

The question in the case is whether the mortgagor, Striker, after paying off his mortgage to Weil, could revive it, and transfer it to Robert, as security for a new indebtedness, as against a subsequent grantee for value, but with constructive notice of the mortgage, it never having been satisfied of record. The latter invokes the rule that the payment of the mortgage debt, extinguishes the mortgage. Hill. Mortg. (4th Ed.) 473; 1 Jones Mortg. § 943; Mead v. York, 6 N. Y. 449. But this rule has its exceptions ; and the payment by the mortgagor to the mortgagee does not cancel the mortgage, where the intent of the parties is that it should be kept alive and where the equitable rights of innocent parties require that it should be. Champney v. Coope, 32 N. Y. 543. When the amount due is paid, the intent of the parties in making such payment, whether to extinguish or keep alive the security, will govern. Coles v. Appleby, 87 N. Y. 114-119. Although a mortgage may have been paid, yet, on a valuable consideration, it may be kept alive for other purposes, where the rights of creditors and other persons have not intervened. Purser v. Anderson, 4 Edw. Ch. 18. In the case last cited a bond and mortgage were given to secure the mortgagee against a note which he had made for the mortgagee's accommodation, and this note was afterwards paid, but the bond and mortgage were afterwards assigned, for a valuable consideration, to a third party. The vice-chancellor held that, notwithstanding the mortgage was satisfied by the payment of the note, and became a dead letter in the hands of the mortgagee, it might, with the assent and concurrence of the mortgagor, be assigned, and in the hands of an assignee for value would be a valid and subsisting security. But in that case it appeared that, before the assignee parted with his money and took the assignment, the mortgagor gave a new mortgage to another party, and therefore it was held that it was not competent for the parties to the defunct mortgage to revive it to the prejudice of the holder of the new security. In Kellogg v. Ames, 41 N. Y. 259, it was held that a purchaser of -real estate incumbered by a mortgage, which he assumed, and subsequently actually paid off, could nevertheless, having taken an assignment in blank at the time of payment, reissue such mortgage to another creditor, in payment of a debt, so as to bind the land in the hands of a subsequent purchaser from him, and that foreclosure could be decreed in fav- or of. the assignee. It was said that the mortgage was not canceled or extinguished by the payment, an assignment having been taken, and there being no intention that it should be regarded as paid or merged, the party paying not being the mortgagor; that when he subsequently sold the mortgage, as a valid and subsisting security, he was the owner of the lands, and capable of charging them with, or continuing, an incumbrance upon them, and must be held to the full legal effect of a paroi agreement that the mortgage should continue a lien upon the premises mortgaged ; that, had he continued to be the owner of the land, in an action to foreclose he would have been estopped from alleging that the mortgage was not a valid and subsisting security and a perfect lien ; and that his subsequent grantee of the land, taking the deed with constructive notice of the unsatisfied mortgage upon the record, steps into his grantor’s place, and the estoppel controlling upon the latter was controlling upon him. In Coles v. Appleby, supra, a mortgage was allowed and paid in a settlement of accounts between the parties, but was subsequently assigned, by consent of both, for value; and it was held that the facts justified a finding that they did not intend that it should be paid and extinguished, and that it was enforceable against a subsequent mortgagee, it being unsatisfied upon the record. And it was held that, when the amount due upon a mortgage is paid, the intent of the parties in making such payment, whether to extinguish or keep alive the security, will govern; citing Harbeck v. Vanderbilt, 20 N. Y. 395, and Kellogg v. Ames and Champney v. Coope, supra.

In the present case, Striker, the mortgagor, took a satisfaction piece of the mortgage when he paid the amount due upon it to Weil, the mortgagee, but did not file the satisfaction piece, keeping it in his possession, together with the bond, which was returned to him. He did not then get the mortgage, because it had not yet been returned from record. That mortgage was made May 15, 1891, payable on June 18, 1891, and was paid by Striker, the mortgagor, when it fell due. Two weeks afterwards, he took the bond and satisfaction piece to Robert, and gave them to him, and promised to give him the mortgage, and an assignment thereof, and upon the faith of the bond, mortgage, and assignment Robert then advanced $1,000 to Striker. The facts indicate a clear intent on Striker’s part not to extinguish or satisfy the mortgage by the payment to Weil, but to keep. it alive for further use; an intent explained by the testimony that, his wife refused to execute a new mortgage. The evidence of intent is as clear as in Coles v. Appleby, supra, for in that case the party paying the mortgage afterwards certified that the property was free from incumbrances, and the mortgage was not assigned until nearly four months afterwards. In the present case the use of the mortgage as security for a new debt was almost immediately after'the payment of the original debt. The object of keeping the security alive was clearly made out, and the withholding of the satisfaction piece from record is conclusive evidence of intention to preserve the mortgage as a lien upon the land.

With respect to the equities between Striker and Robert, who advanced the money upon the faith of the mortgage as a valid and subsisting security, the facts bring the case exactly with the decision of Kellogg v. Ames; and, as Striker would be estopped from denying the validity of the mortgage, his subsequent grantee with constructive notice of the unsatisfied mortgage upon the record steps into his place, and the estoppel, controlling upon the grantor, is controlling upon him. The equity wanting in Purser v., Anderson is with the assignee here, who parted with his money on the faith of the mortgage before the subsequent conveyance was made. It must be deemed, therefore, that the mortgage from Striker to Weil, although paid and satisfied to the latter, was not extinguished, because it was the intention of the mortgagor that it should not be; that .lie could and did reissue it as a subsisting lien upon the lands to his creditor, Robert, for value, before any rights of creditors or third parties intervened, and that it was a lien prior to the subsequent conveyance, which was taken with constructive notice of it unsatisfied upon the record. Report confirmed, with costs.


author: Pryor, J.

text:
    Adam P. Dienst et al., Pl’ffs, v. William H. McCaffrey et al., Def’ts.

      (New York Common Pleas, Special Term.

      Filed February, 1895.)

    Attorney and client—Lien.
    An attorney’s lien on a judgment for his costs and compensation, though without notice, prevails over the lien of the creditor in a supplementary proceeding against the party recovering the judgment.
    Motion to vacate an order made in supplementary proceedings, requiring payment to plaintiffs of the amount of a judgment recovered by defendants against a third party.

      James Kearney, for the motion ; J. Homer Hildreth, opposed.
   Pryor, J.

An attorney's lien on a judgment for his costs and compensation, though without notice, prevails over the lien of-the creditor in a supplementary proceeding against the party recovering the judgment. Upon the examination of a third party in a supplementary proceeding, it was discovered that the execution debtor held a judgment against him, and thereupon an order was entered requiring him to pay the judgment in satisfaction of the execution creditor. The attorney who procured the judgment now intervenes, with a motion to vacate that order and to protect his lien. The judgment against the third party is, of course, available only to the extent of the execution debtor’s interest in it. The attorney has a lien on the judgment for the amount of his costs and compensation. Washburn v. Mott, 34 St. Rep. 145; Guliano v. Whitenack, 62 St. Rep. 84; Lee v. Vacuum Oil Co., 126 N. Y. 579; 38 St. Rep. 662; Palmer v. Van Orden, 64 How. Pr. 79. Notice of the lien is not necessary to its efficacy. Keeler v. Keeler, 51 Hun, 505 ; 21 St. Rep. 666; Guliano v. Whitenack, supra; Washburn v. Mott, supra. The motion is granted, with costs; but, finding in the papers no proof of the amount of the attorney’s compensation, it must be ascertained upon a reference. 1 Bliss’ Code, p. 77.


author: Dykman, J.

text:
    Henry B. Jenkins et al., Resp’ts, v. Gilbert Hall et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed March 5, 1895)

    Pleading—Amendment
    The omission in a complaint, in an action in the city court, of an allegation that the defendant is a resident of the city, may be supplied by amendment.
    Appeal from an order, amending the complaint by inserting an allegation of residence.

      John F. Brennan, for app’lt Gilbert Hall; James A. O'Gorman, for resp’ts.
   Dykman, J.

This is an appeal from an order of the city court of Mt. Vernon allowing an amendment to the complaint in this action by alleging the defendant Gilbert Hall to be in the city of Mt. Vernon. The amendment was in the interest of justice, and the order should be affirmed, with $10 costs and disbursements.

All concur.


text:
    In the Matter of Proceeding to punish Gilbert Hall for Contempt of Court.

      (Supreme Court, General Term, Second Department,

      Filed March 5, 1895.)

    Contempt—False answeb.
    To Interpose a false answer in an action, is a contempt of court.
    Appeal from an order, imposing a fine of the amount of the judgment in the action, with costs and expenses. ,,

      John F. Brennan, for app’lt; James A. O'Gorman, for resp’t.
   Dykman, J.

This is an appeal from an order of the city court of Mt. Vernon, punishing Gilbert Hall for contempt of court. The contempt consisted in an interposition of a false answer in an action in that court in favor of Henry B. Jenkins and John Carmody against Gilbert Hall and Wright Hall. The answer was false, and all the facts and circumstances show that Gilbert Hall knew it to be so.

The order should be affirmed, with $10 costs and disbursements. o All concur.


author: Brown, P. J.

text:
    James W. McDermott, App’lt, v. Nassau Electric Railroad Company, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed March 5, 1895.)

    Statutes—Repeal.
    A later statute, covering the same subject matter and embracing new provisions, operates to repeal the prior act, though the two acts are not in express terms repugnant.
    Appeal from a motion, denying a preliminary injunction.

      E. C. Boardman, for app’lt; John J. Allen and James C. Church, for resp’t.
   Brown, P. J.

The plaintiff is the owner of a lot of land ' fronting on Marcy avenue, opposite Tompkins park, a public park of the city of Brooklyn, and this action is brought to restrain the defendant from constructing a surface railroad on that part of said avenue on which said park fronts. The railroad law of 1890 (chapter 565, § 91) contained the following provision in relation to surface railroad companies obtaining the consents of property •owners to the construction and operation of their roads:

“But when such railroad runs' through a street or avenue hounded on one side by' a public square or park, the consent of -one half of the property owners on the opposite side of such •square or park shall also be first obtained.’’

Chapter 723, Laws 1894, amended section 91. It re-enacted the section with certain changes, and omitted the provision quoted above. It is the appellant’s claim that the provision quoted was not repealed by the amending act of 1894, but is still in force, ar.d this claim is based upon the language of the amending act, which is that “section ninety-one * * * is hereby .amended as follows”; and in the appellant’s argument a distinction is drawn between the expression in an amending act which declares a prior statute to be “amended as follows” and one which declares a prior act to be “amended so as to read as follows.” When it is intended to supersede a prior statute by a new act, the latter form of expression is the usual one; and it has been repeatedly decided that a statute declaring a former statute to be thereby ■amended so as to read as prescribed in the amending act is a repeal of the original statute. People v. Wilmerding, 136 N. Y. 363; 49 St. Rep. 651. But the rule is well settled that a later statute covering the same subject-matter, and embracing new provisions, operates to repeal the prior act, although the two acts are not in express terms repugnant. People v. Jaehne, 103 N. Y. 182 ; 3 St. Rep. 11 and cases cited.

While it is true that there is nothing necessarily repugnant in the act cf 1894 to the requirement that the consents of the owners of property on the opposite side of a public square or park should be first obtained before a railroad could be constructed through a street bounding one side of such park, yet we are of the opinion that this case falls within the rule quoted. The act of 1894 covers the same subject-matter as the section which it amends. It is entitled “ An act to amend the railroad law relating to consents of property owners for building and operatipn of street surface railroads.” It re-enacts the old section. The caption of the section is the same: “ Consents of Property Owners and Local Authorities.” We are of the opinion that it was the intention of the legislature that it should be a substitute for the section amended, and that it declared the law upon the subject embraced in the title of the act, and the provisions of the old statute which are omitted in the new act must be deemed to be repealed. Moore v. Mausert, 49 N. Y. 382.

The order must be affirmed, with $10 costs and disbursements.

All concur.