text:
    Charles A. Hoehmann, by Guardian, Resp’t, v. The Moss Engraving Co., App’lt.

      (New York Common Pleas, General Term,

      Filed June 5, 1893.)

    Master and servant—Negligence—Freight elevator.
    In defendant’s building was an open freight elevator, consisting of a flat platform supported by upright rods, with a shaft of four posts, stiffened at intervals by cross ties, leaving a space of one inch between the tie and the platform. Plaintiff, a boy of fourteen, was told to go down and help the elevator man with some boxes. After putting them on the elevator, the man who operated it told him to get on and he did so. His heel projected over the edge and was struck and injured by one of the ties. Held, that in view of the use for which it wits intended, defendant was under no obligation to sheathe the shaft nor to place a bevelled strip under the tie, and was not guilty of negligence in failing to do so; that the direction of the elevator man did not bind defendant, nor excuse plaintiff from the exercise of care, and that he was guilty of contributory negligence in riding thereon with his heel projecting as it did.
    Appeal from a judgment in favor of the plaintiff entered upon the verdict of a jury, and from an order denying defendant’s motion for a new trial made on the minutes.

      Charles Steele, for app’it; Marshall P. Stafford, for resp’t
   Bookstaver, J.

This action was brought to recover damages for the alleged negligence of the defendant, whereby the plaintiff, a youth of fourteen years, in its employment was injured. The defendant was engaged in the engraving businéss at the northwest corner of Elm and Pearl streets in this city. The plaintiff was in its employ as an office boy, and had been so engaged during the preceding summer. In the building was an elevator used for the purpose of hoisting freight, and which had been in continuous use for more than eight years without accident. This elevator consisted of a flat platform, open on all four sides, supported on each corner by upright rods which were gathered together over the top and attached to a rope which hoisted or lowered it as required. The form was that in general use. The elevator shaft consisted of four posts extending fro'm the cellar to the roof, and was stiffened at intervals by cross-ties, about three to three and a half inches thick, from one of these uprights to the other, so that when the floor of the elevator passed them there was about an inch of space between the tie and the platform. On the 12th November, 1890, the plaintiff was under the direction of Mr. Hull, defendant’s shipping clerk, and was directed by him to go down stairs and give Ray, the elevator man, a “hand with the boxes.’’ meaning pasteboard hat boxes which were on the sidewalk. This the plaintiff afterwards explained he understood to mean that he should help Ray put them on the elevator. When he had done this, he undertook to ride up on the elevator with the boxes with his heel projecting over the elevator platform. As it rose his -heel struck against one of the ties in the elevator shaft, whereby it was severely injured, and it is to recover for these injuries that the action was brought

When plaintiff rested the defendant moved to dismiss the complaint on the ground that plaintiff had failed to establish any negIigence on the part of the defendant, and by his own showing was himself guilty of negligence. This motion was renewed when the case was closed, but both motions were denied, to which defendant excepted.

It is undoubtedly the duty of the master to furnish reasonably safe machinery and appliances, but he is not bound or required to use the latest and most approved appliances. Burke v. Witherbee, 98 N. Y., 562; Carlson v. Bridge Co., 132 id.. 273; 43 St. Rep., 942; Stringham v. Hilton, 111 N. Y., 188; 19 St. Rep., 621; Kern v. De C. & D. S. R. Co.. 125 N. Y., 50; 34 St. Rep., 263. The elevator was made solely for hoisting freight. That employes had sometimes used it to ride up or down on it does not alter that fact. Morris v. Brown, 111 N. Y., 318; 19 St. Rep., 355. A mere inspection of the apparatus showed that it was intended for a freight and not a passenger elevator, as all the witnesses in this case agree. The elevator, shaft and appliances were all of the kind in common and ordinary use as freight elevators at the time it was constructed, and for the purposes for which it was intended, it was safe and suitable for such use, and there is no claim made in this case that it was out of repair in any respect No accident had happened on-it before, although it had been in use for eight years. In many respects this case is similar to Riordan v. Ocean Steamship Co., 11 N. Y. Supp., 57; 32 St. Rep., 328, where we held that it was not negligence to use such an elevator as the one under consideration, and that the submission of such a question to the jury was error, which was afterwards affirmed by the court of appeals. 124 N. Y., 655; 36 St. Rep., 476.

The only negligence which the plaintiff claims is the failure to have the entire elevator shaft sheathed or boarded,so as to present a uniformly smooth surface; or to have had a bevelled strip of timber placed under the tie so that if anything struck against it it would be pushed toward the centre of the platform. The existence of the tie itself is not complained of, for it was necessary to stiffen the structure, and was the usual mode of construction. There was no evidence offered to show that it was necessary or customary to have such elevators sheathed; on the contrary, all the testimony was directly to the opposite of this. Such sheathing would have made it impossible to have handled goods except on some side left unsheathed, which would have greatly interfered with its use for the handling of goods. Besides, it was evidently intended only for a freight elevator, and there was no difficulty whatever in so placing the freight that it could not come in contact with the ties or with the floors. As to the bevelled piece beneath the tie it is extremely doubtful whether it would have been of any service if placed there, and was certainly unnecessary for the purposes of a freight elevator.

In Boehm v. Mace, 18 N. Y. Supp., 106; 45 St. Rep., 285, this court had to deal with a case almost identical. The action was brought for injuries sustained by the plaintiff by having his, foot and leg cut by the side of the freight elevator and a projecting beam or moulding on the side of the elevator shaft. The negligence charged in the complaint was the absence of guard rails upon the elevator. And on the trial it was insisted that there was negligence on the part of the defendant in not having the elevator shaft sheathed, as the plaintiff claims should have been done in this case. The court held that the defendant was under no obligation to have the shaft sheathed, and the mere fact that the plaintiff’s foot was caught between the side of the car and the projecting floor beam on the side-of the shaft, which could not have happened if the shaft had been boarded in, was no evidence of negligence.

Even if the failure to sheathe the shaft could be deemed any evidence of negligence, it evidently had nothing to do with the accident in this case. The platform of the elevator had a play of an inch between it and the sides of the hatch on the different floors. The edge of the hatch and the cross beam against which the plaintiff struck his heel was on the same perpendicular line, and the elevator car would thus pass them both without striking or touching. The defendant’s expert, Schultz, says he measured the distance or play between the edge of the car and the beam, and it was one inch. Con- ■ sequently the car would necessarily pass free and clear of both beam and hatchway. It is plain, therefore, that the accident was not due to the location of the tie, for the plaintiff’s foot would have been caught by the edge of tlie hatchway, even if the tie had not been there. And if there had been a bevelled piece placed beneath it, and the heel had stuck over far enough to have been caught on the edge of it, a still more serious injury might have resulted, because the edge of it would have been sharper than the square tie. The only thing that could have prevented the accident would have been a board or guard around the elevator platform, which would have rendered it impossible for anything to project over the edge; but this was not admissible, for it is requisite in a freight elevator that all four sides be open in order to permit freight being readily put upon it.

Again, nothing had ever occurred to lead the defendant to sup- • pose that there was any danger in using the elevator as it was. As before said, the elevator and shaft were in good repair and in perfect order as they were constructed. They had been used as they were at the time of the accident for several years. It had gone up and down many times, and no one had ever been injured before this accident. 3STo elevator is constructed in such a manner that it could not possibly be made safer, but it is a well settled rule of law that in determining the proposition whether or not the use of a particular machine was negligence the question must be viewed from the standpoint of what was known at the time of the occurrence and not from what was discovered after an accident took place. Dougctn v. Champlain Trans. Co., 56 N. Y., 1; Cleveland v. N. J. Steamboat Co., 68 id., 306; Loftus v. Union Ferry Co., 84 id., 455 ; Stringham v. Hilton, supra; Lafflin v. R. R. Co., 106 N. Y., 136 ; 8 St. Rep., 596. As was well said in Burke v. Wilherbee, supra : “ Under such circumstances, can the

defendants be charged with negligence ? Were they bound to know more than everyone else? Ought they to have perceived danger that was not visible to anyone else, and which those whose lives were most exposed, were not sufficiently wise or vigilant to foresee ? It is a mistake for one to take his stand after an accident and to impute responsibility from a view thus obtained. It is nearly always easy, after an accident has happened, to see how it could have been avoided.

There was a good deal of conflict in the evidence as to whether or not the defendant had notices posted on the elevator doors, and throughout the building, forbidding employes to ride on this elevator. The most that plaintiff’s witnesses say is that they did not see the notices ; while some of the defendant’s witnesses swear positively that they had been there for years. But whether there were notices there or not, it was clear to the intelligence of any one, even a boy of fourteen years of age, that this was constructed and used as a freight elevator only, and that if he went upon it he went in a position of danger.

The plaintiff’s excuse for going upon it was that he was told by the elevator man, Bay, to jump on. He does not say that anyone else directed him to go on the elevator. As before mentioned, he says that he understood Mr. Hull’s order to mean merely that he was to help Bay put the boxes on the elevator. Bay was a mere co-employe, and his direction to jump on cannot bind the defendant. Stephen v. Stevens, 49 St. Rep., 850. Again, there was no necessity for plaintiff to ride on the elevator. He could have gone up the stairs which, he testified, he was accustomed to use; he had never ridden up on the elevator before.

We think it clear, therefore, that no negligence was shown on the part of the defendant, and that the complaint should have been dismissed on this ground. We also think, from the testimony, that the plaintiff himself was guilty of negligence in using the elevator as he did. It was clearly a freight elevator. He chose to ride upon it notwithstanding it consisted only of a platform with four uprights. He had ridden down on it before and must or should have noticed the construction of the shaft, which was open and manifest to the most casual inspection. If there was danger in its use, he should have seen it. Besides, had he kept his foot inside of the platform, instead of allowing it to. project over and into the shaft, his foot would not have been caught and he would not have been injured, as there was at least an inch of space between the edge of the car and the tie. It is dangerous for a person to ride with any portion of his-body projecting beyond the edge of a platform of any elevator car, freight or passenger ; any this has been held to be negligence per se. Holbrook v. Utica R. R. Co., 12 N. Y., 236; Dale v. R. R. Co., 73 id., 468; Hallaban v. R. R. Co., 102 id.. 194; 1 St. Rep., 367 ; Breen v. R. R. Co., 109 N. Y., 297 ; 14 St. Rep., 835. The plaintiff admits that his foot projected out, otherwise he could not have got hurt. With ordinary care and observation plaintiff could have observed the danger and have avoided it. Consequently, failing to do so, he cannot recover for the injuries sustained. Williams v. R. R. Co., 116 N. Y., 628; 27 St. Rep., 760.

The rule is that plaintiff is required to establish not only that defendant was guilty of negligence which caused the injury, but also that plaintiff was chargeable with no negligence which contributed thereto. Arnold v. D. & H. C. Co., 16 St. Rep., 310. "When the circumstances point as much to the negligence of plaintiff as to its absence, a nonsuit shall be granted. Wiwirowski v. R. R. Co., 124 N. Y., 420; 36 St. Rep., 405. It was not necessary for plaintiff to ride on the elevator, and he was not told to do so by any one having authority to direct him in the matter. The mere invitation of a co-employe was not sufficient to relieve him from the exercise of care on his part. There were stairs for the employes to go up and down; if plaintiff chose, at the invitation of a co-employe, or for his own pleasure or convenience to ride on the elevator, he did so at his own risk, and cannot charge the accident resulting therefrom to the defendant. Swenson v. Mahopac Iron Ore Co., 24 St. Rep., 43; 0’Brien v. Western Steel Co., 100 Mo., 182. But it is claimed that there was not room enough for the defendant’s feet to be placed wholly on the platform; that the boxes were so arranged upon it that there were only two or three inches space around the edge where one could stand. If this was so, then he should not have taken the position at all, because it was manifestly dangerous to the most casual observer. Again, if this were the fact and it were intended that plaintiff should ride upon the platform, then it was negligence for him and his co-employe to so place the boxes that there was no room for him to stand. Provision should have been made by him and his co-employe for a safe place to stand if it was intended to use the platform in going up. But the plaintiff cannot recover for his own negligence nor even for the negligence of his co-employe in this respect. It is claimed that the plaintiff was a youth of fourteen years of age, and should not be held to that degree of care that a man of mature years is held. This is true within certain limits; but we think in this case the danger was so open, manifest and palpable, that even a youth of fourteen years of age should have observed it.

Having arrived at these conclusions, it is unnecessary to examine the other alleged errors in this case, as the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Bischoff and Pryor, JJ., concur.


source: Caselaw Access Project

author: Bookstaver, J.

license: Public Domain

text:
    Ferdinand W. Geiler, App’lt, v. Frederick M. Littlefield, Impl’d, Resp’t.

      (New York Common Pleas, General Term,

      Filed June 5, 1893.)

    1. Estoppel—Admission—Feaudulent conveyance.
    One T., who was indebted to plaintiff and others, transferred real estate to defendant so that urgent creditors should be kept at bay until arrangements could be made to pay them. Thereafter plaintiff made a contract with defendant to make repairs on the property, did the work and received payment therefor. Held, that by the making of the contract plaintiff admitted that defendant was the owner of the property, and was estopped by such admission from maintaining an action to set aside the conveyance as fraudulent.

      2. Sams—Emotion of bemedies.
    After the commencement of the action and with full knowledge of his rights plaintiff insisted on carrying out the contract,to which defendant assented on the ground that he was legally compellable to carry it out. Meld, that this was an election on the part of plaintiff which operated to prevent a recovery.
    3. Trial—Fraud.
    It is not error for the coiirt to refuse to find as to the character and circumstances concerning an alleged fraudulent conveyance on the plaintiff's evidence alone.
    Appeal from judgment of this court atan equity term, dismissing the complaint on the merits at the close of the plaintiff's-case.
    Action to set aside a conveyance as fraudulent as to creditors. The court below. Judge Pryor, on granting the dismissal, said:
    “The motion is for judgment, on the ground that the plaintiff was estopped by ratification and election and estoppel in pats.

    “In the case of an estoppel by ratification, it is requisite that the party sought to be estopped should know of the act which he-is supposed to have ratified. So, in the case of an election, it is requisite that the party should know of the alternative right which he is supposed to have abandoned.
    “ So, also, in the case of a technical estoppel in pais, it is requisite that the party sought to be estopped should have known of the untruth of the representation now adduced against him as an estoppel.
    “ The case was argued by the respective counsel altogether as a case of ratification, or election or strict ordinary estoppel in pais, and it was in that aspect of the case that I intimated on the argument that the inclination of my mind was against the estoppel; because I did not see evidence sufficient to authorize a finding that at the time of the alleged estoppel Mr. Gfeiler knew of the invalidity, as now alleged, of the transfer.
    “ But this is not a case of ratification or election, or strict estoppel in pais. It is a case of an equitable estoppel by admission made by one party to the other, upon which admission the party now claiming the estoppel is alleged to have acted.
    “What are the elements of this equitable estoppel by admission? I find a very clear, precise and comprehensive definition of equitable estoppel by admission in the case of McOravey v. Memson, 54 Am. Dec., 194, as follows:
    “ Adrn issions acted on by others are conclusive against the party making them in all cases between him and the persons whose conduct he has influenced; nor is it material whether the admission is-expressly made, or is to be inferred from the conduct of the parties ; and in the operation of this rule it is unimportant whether the admission is true or false, made fraudulently or innocently, it being the-fact of another’s having acted on it that renders it conclusive.’
    “This is an explicit statement of the rule in a leading case of high authority. But that case does not stand alone. Such is the uniform doctrine of estoppel by admission, and it is utterly immaterial whether the party sought to be estopped knew at the time, or ought to have known, whether his admission was false or true. The doctrine is so uniformly held that it is incorporated by the text writers in elementary treatises. Thus you will find in Greenleaf on Evidence, § 207 : ‘Admissions, whether of law or of fact, which have been acted on by others, are conclusive against the party making them in all cases between him and the person whose conduct he has thus influenced, ft is of no importance whether made in express language to the person himself or implied from the open and general conduct of the party.’
    “ Then § 208 : 1 It makes no difference in the operation of this rule whether the thing admitted was true or false, it being the fact that it has been acted on that renders it conclusive.'
    “ In determining this motion the question is whether Mr. Littlefield acted on the admission, and, if he so acted, whether he acted to his prejudice.
    “ Mr. Littlefield stood as the ostensible owner of these houses on One Hundred and Fifth street. Being thus the apparent owner he desired to have repairs made upon those houses, and negotiations ensued between him and this plaintiff as to the plaintiff doing the work. Finally a contract was made between Mr. Little-field and Mr. Geiler by which Mr. Geiler agreed to do the work and Mr. Littlefield agreed to pay him for it. At that time Mr. Geiler admitted expressly and by conduct that those houses were the property of Mr. Littlefield; he admitted it in the contract. Having conceded that the houses were the property of Mr. Little-field and gained an advantage to himself, he now claims that those houses were not the property of Mr. Littlefield, but were, in fact, his own property, that is to say, the property of creditors, of whom he was one. Is it conceivable that Mr. Littlefield would have employed Mr. Geiler to do this work had he understood Mr. Geiler to say, 1 Yes, I will do this work for you at the stipulated price of $725, but this property is not yours, you hold it by fraud, and I intend to commence an action against you to recover it?’ To me the proposition is unthinkable.
    “The counsel for the plaintiff in his brief adverted to a letter from Mr. Littlefield to Mr. Geiler, in which Mr.' Littlefield, after this very suit was commenced, had agreed that Mr. Geiler should go on with that work.
    “It appears that Mr. Geiler had gone to Mr. Littlefield’s office and notified him or his clerk that he intended going on witli this work. Mr. Littlefield in reply assented to his going on, but he put his assent expressly on the ground that he was legally compellable to carry out the contract. If Mr.°Littlefield, at that stage of the transaction, had been vested with an option either to repudiate or ratify, and, instead of repudiating the contract, had freely elected to go on with it, there would have been strong reason to argue that he, in the first instance, had not acted on the admission of Geiler, indeed it might have operated as a waiver of the admission. But he said in his letter that he was bound to go on with his contract. Therefore, here is no evidence that he did not in. the first instance act on the ádmission now in question.

      “ The third element of equitable estoppel by admission is that the party seeking to enforce the estoppel will be prejudiced if the other party be allowed to withdraw the admission.
    “ What is there in this case upon that point ? There was a contract by which Mr. Littlefield was obliged to suffer this plaintiff to go on with that work, and to pay him $725, which he did pay him, and the plaintiff now has that money, which he got upon the admission that this was theJ property of Mr. Littlefield, and upon which Mr. Littlefield had these repairs and this work ■done.
    “ Can he recover that $725, supposing Mr. Geiler to succeed in this action ? If he is entitled to a credit of the $725, it may be that he has not been damnified by the admission. On the contrary, if he may not recover that sum, undoubtedly to that extent Mr. Littlefield has been prejudiced by the admission.
    “ The law is quite familiar that in' case of property recovered under a creditor’s bill, it is recovered as the property of the debtor, and should a fraudulent vendee discharge any existing encumbrance upon the property, he is entitled to credit for it. Why? Because he has made a payment for the benefit of the debtor and of the creditors, a payment which attached indissolubly to the property itself. Therefore, in such a case, upon the familiar prin-ciple of subrogation, the defendant Littlefield would be entitled to credit for the $725. Not so, however, where, as here, the fraudulent vendee himself created the debt and for his own benefit exclusively. To allow credit for such debt would be to put him in a position where he may gain and cannot lose by his fraud.
    “ I have found a case exactjgr in point, Escolle v. Franks, 67 California, 137, a decision of the supreme court of that state. There the controversy was between a fraudulent vendee and a oreditor. The property involved was a lot of sheep. The creditors attached the property in the hands of the fraudulent vendee. Thereupon the vendee instituted an action of replevin for the property. At that state of the proceedings the parties came together ; the creditor became a little doubtful as to whether he could succeed in the action, so he agreed to turn the sheep over to the fraudulent vendee, there having been no settlement of the case, however. Thereupon the fraudulent vendee expended $400 in and about their keep. The court said that turning the sheep over to the vendee was an admission of his title and that the expenditure was an estoppel against a claim that the sale was fraudulent. Here is the syllabus : 1 A creditor of a vendor of personal property is estopped tq deny that the sale was followed by an immediate delivery and continued change of possession, if, after the sale, he recognized the title of, and caused the property to be delivered to, the vendee, and upon the faith of such acts the vendee took the property and expended money in its care, which otherwise he would not have done.’
    “ So, gentlemen, my conclusion is that here is an estoppel which precludes Mr. Greiler from contending that, at the time of this contract, the property was not that of the defendant Littleffeld.

      “But there is anotlier ground, which has not been argued before the" court, upon which I should be constrained to the conclusion that judgment must go against the plaintiff, upon his own evidence. It appears that some of the creditors of Mr. Tragman, solicitous about their claims, apprehensive that if other creditors were to press their demands total ruin would ensue, had meetings with a view to devising some arrangement by which that catastrophe could be averted. Mr. Geiler admits that at those meetings he was present. There the proposition was made, to which the creditors assented, that Mr. Tragman should transfer the property to Mr. Littlefield, so that the creditors who were urgent should be kept at bay until such time as Mr. Littlefield could bring about the result that all the creditors should receive compensation. That is the conveyance here challenged for fraud. The pleadings do not contemplate Mr. Littlefield as having kept the property wrongfully, and of having in fraud of creditors misappropriated it; but the complaint proceeds upon the postulate that Mr. Tragman and Mr. Littlefield entered into a collusive agreement, fraudulent in law, as would be the holding of creditors at bay even for a moment; and that agreement, and the conveyance made in pursuance of it, it is sought to annul. Mr. Geiler swears that he did not hear that arrangement.
    “ 1 am not bound to believe him. He is a party to this litigation, and I am forced to avow that I do not believe him. Here was a creditor eager to get his $900; extremely active, and apparently cognizant of all that took place; he had called upon Mr. Littlefield, and by his own evidence was on terms of intimate acquaintance with Mr. Tragman, and was at the creditor’s meetings; yet he says he did not hear of this arrangement. Does he say so "frankly and promptly? Ho; but evasively and doubtfully. It is my conviction that he heard of the proposed arrangement, and that he assented to it; the very arrangement that he now impeaches. Being privy, and assenting to the arrangement, he cannot now impeach it for fraud. Volenti non Jit injuria.

    “It must not be assumed that the court finds on the plaintiff’s evidence that Mr. Littlefield was guilty of fraud. On the contrary, my impression is that, according to plaintiff’s own showing, there has been, no fraud whatever on the part of Mr. Littlefield, and that if I were asked to find fraud, I could not conscientiously do so.
    “The grantors, plaintiff’s witnesses, testify that they had no intent to defraud the creditors; Mr. and Mrs. Tragman swear that the design of the conveyance to Mr. Littlefield was in trust, to pay off the creditors; and so the conveyance to Littlefield was not to defraud the creditors.
    “ The decision of the court is that there must be judgment for the defendants, on the merits, on the ground of estoppel."

      Edward J. McGanney, for app’lt; William B. Hornblower. for resp’t.
   Bookstaver, J.

This action was brought by the plaintiff as a judgment creditor of one Diedrich Tragman, one of the defendants, to set aside a certain conveyance of two houses and lots in West 105th street and two other houses and lots in West 124th street, in the city of New York, made by Tragman to the defendant Littlefield, and have it adjudged to be fraudulent and void as-to creditors, or to be in trust for Tragman and the plaintiff and his-other judgment creditors. In addition to the defenses set up by the answer served before the trial, Littlefield was allowed upon the trial to amend by setting up as an affirmative defense that plaintiff recognized his title as owner of the property and elected to ratify it. At the close of the plaintiff’s case the defendant Littlefield moved to dismiss the complaint on the ground that the plaintiff was estopped from maintaining this action by reason of the contract entered into between him and the defendant Little-field dated May 10, 1890, and by reason of the work done under that contract by the plaintiff after knowledge of the facts upon which he based his action, and by reason of the payments made by the defendant Littlefield to him upon the faith of his title as-owner of the property, relying upon the acquiescence of the plaintiff in that title, and upon the faith of the contract entered into by the plaintiff and the defendant on the 10th May; and also on the ground that the plaintiff elected to affirm the title of the defendant Littlefield by entering into the contract of May 10,1890 ; and by calling on Mr. Littlefield to go on and perform under the contract ; and by himself doing work under the contract and receiving payment under it from Littlefield as owner of the property. After due consideration, the learned judge who tried the action granted the motion on the first of these grounds, and so fully and clearly stated his reasons for so doing that we do not see how anything can be added thereto, and we accept his reasons for so doing as our opinion upon that branch of the motion..

Although the learned judge who tried this case expressly refrained from placing his decision upon the ground of an election,, yet we think the facts, as they appear in this case, would have warranted him in doing so. Leaving out of view what was done prior to the commencement of the action, it is evident that, since the suit was commenced, and with full knowledge of his rights, and before the trial of this action, he has, by his continuous course of conduct in insisting upon the carrying out of his contract, elected to affirm the deed of the 10th May to Mr. Littlefield. Election differs from estoppel in that it is not necessary to show that one party would be injured bv allowing the other party to pursue two inconsistent remedies. Many of the authorities, however, base the doctrine of election upon estoppel, and in one sense this is correct, in that it is bad faith and unfair dealing for a party to pursue two inconsistent remedies. Bigelow, in chap. 20 of his work on estoppel, discussing the doctrine of election, says: A

party cannot occupy inconsistent positions. And where one has an election between several inconsistent courses of action, he will be confined to that which he first adopts. Any decisive act of the party, done with knowledge of his rights and of the fact, determines his election and works an estoppel.” The estoppel, however, does not necessarily involve the idea of injury, although that element does exist in this case, as we think. A fraudulent transfer is merely voidable, and consequently is capable of confirmation either by assent at the time or by a subsequent ratification. Bump on Fraudulent Conveyances, 3d ed., p. 464. At pages 465, 6 : “ Although a creditor is not a party to a fraudulent- transfer, yet he may subsequently elect to confirm it; for any ■one may dispense with a provision of the law which was made for his protection. But before there can be any binding -confirmation he must have notice or knowledge of the facts. If he has, however, been guilty of negligence in availing himself of information within his reach, constructive notice may be imputed to him.” “ If with notice of the fraud, either actual or constructive, he makes any agreement upon consideration confirming the transfer, or any statement or agreement to that effect, upon the faith of which the grantee acts as he would not otherwise do, or cinder such circumstances that his subsequent assertion of his rights as a creditor, if permitted, would operate as a fraud, he will be held to have confirmed the transfer.” In a note, 22 Abb. FT. 0., 268, p. 269, Abbott says: “ It is an old maxim of the common law that if a man has an election to do or demand one of two things, and he determines his election, it shall be determined forever.” Quoting from Spear, J., in Becker v. Walworth, 45 Ohio St., 169 : “It may be said as a deduction from the authorities on the subject, that an election is the making of a choice between two or more benefits or rights, which estops the party from afterwards denying that an election has been made, and from demanding some benefit or right other than the one chosen.” And in Bump on Fraudulent Conveyances, p. 467, it is said : “ If a creditor enters into a contract with the debtor and grantee, whereby he affirms the validity pf the conveyance, he cannot afterwards impeach it.” In Lane v. Lutz, 1 Keyes, 203, there was a voidable chattel mortgage on property of A. held by B. The plaintiff, a creditor of A., entered into an agreement with A. and B. whereby the property was to be sold free fromB.’s mortgage, and B. paid out of the proceeds. The plaintiff sought to have the mortgage set aside. Held, “ The plaintiff is precluded from receding from his agreement by every consideration which enters into the idea of equitable estoppel.” In Jenness v. Berry, 17 N. H., 549, the question was whether a creditor could set aside a conveyance of land. The court charged the jury, “If Berry knew all the circumstances connected with the transfer and acquiesced in it, his claim upon the land would cease.” Plaintiff excepted to the charge, and the supreme court held: “ It does not appear what agreement was made or what constituted the acquiescence. If he, Berry, made any agreement confirming the deed upon any consideration or statement or agreement to that effect, upon the faith of which the grantees acted as they would not otherwise have done under such circumstances that his subsequent assertion of his right as a creditor, if permitted, would operate as a fraud, he will be held to have affirmed the transfer.” , Pursuing one remedy will preclude from pursuing another inconsistent remedy.

In Morris v. Rexford, 18 N. Y., 552, a vendor replevined his goods from the vendee because of failure of consideration; held an election to disaffirm the sale, and he could not sue for the purchase money. Rodermund v. Clark, 46 N. Y., 354; Moller v. Tuska, 87 id., 166; Note in 22 Abb. N. C., p. 270; Blessy v. Kearny, 24 La. Ann., 289; Phila.,etc., Co. v. Howard, 13 How. (U. S.), 307 ; 14 U. S., 157.

We think it follows from the foregoing authorities and from the principles laid down therein as applied to the facts of this case, that the plaintiff has waived his right to maintain this suit by his continuous assertion of and affirmance of his contract with Little-field since the commencement of the suit, and that this is an election within all the authorities and operates to prevent a recovery in this action.

The court did not err in refusing to find plaintiff’s several requests to find in regard to the character and circumstances coneérning the alleged fraudulent conveyance from Tragman to Littlefield. In respect to this the learned judge, in deciding the case, said : “ It must not be assumed that the court finds on the plaintiff’s evidence that Mr. Littlefield was guilty of fraud; on -the contrary, my impression is that, according to plaintiff’s own showing, there has been no fraud whatever on the part of Mr. Little-field, and that if I were asked to find fraud I could not conscientiously do so.’’ This was upon plaintiff’s own evidence only, and it is manifest that it would have been unjust to both parties to have made any finding in regard to these matters on plaintiff’s evidence alone. It is equally clear that it would have been a waste of time to have gone on and taken defendant’s testimony in respect to those matters when, no matter what the conclusion arrived at, for the reasons before stated the complaint would have been dismissed.

We, therefore, think the judgment should be affirmed, with costs.

Daly, Oh. J., and Bischoff, J., concur.


author: Bischoff, J.

text:
    Ella Hilleary, Resp’t, v. The Skookum Root Hair Grower Co., App’lt.

      (New York Common Pleas, General Term,

      Filed June 5, 1893.)

    1. Contract—Construction.
    The sense in which an instrument is to be interpreted is its apparent sense, that in which it will be commonly received; not the sinister, furtive sense of one of the contracting parties, a sense forced out of the language by technical precision.
    2. Same.
    Plaintiff was employed by defendant for a year to exhibit her hair at such times an'd places as defendant should direct. The contract provided . her salary should be paid monthly, while so exhibiting, at the rate of fifty dollars per month, payable at the end of each month ; the words “ while so exhibiting ” being interlined, Held,, that the contract was intended to convey the meaning that the salary would be paid so long as plaintiff continued in defendant’s employ and subject to its directions, and that she was entitled to recover the salary for the two _ months during which she held herself in readiness, but received no directions from it.

      3. Same—Place op payment—Jurisdiction.
    In the absence of an agreement, to the contrary the salary was payable at the place where plaintiff was at defendant’s direction at the time it was due, and that, in the present case, being the city of New York, the courts of this state had jurisdiction of the action although the parties were non-residents and the contract was made out of the state.
    4 District courts—Pleading—Foreign corporations.
    Section 3315 of the Code does not require the complaint in an action in the district court against a foreign corporation to state that defendant has an office in the city of New York. It is sufficient if the fact is established on the trial.
    Appeal from a judgment for plaintiff recovered in the district court in the city of New York for the third judicial district.
    Action to recover wages accrued under a contract in writing. The facts are stated in the opinion.

      Miller & Miller, for resp’t; Carlisle Norwood, for app’lt.
   Bischoff, J.

Defendant is a corporation organized under the laws of the state of Oregon, and engaged in the business of compounding and vending a preparation represented by it to promote the growth of human hair. On or about September 13, 1892, it entered into a contract with plaintiff by which the latter bound herself to enter defendant’s employ for one year from the date thereof to exhibit her hair at such times and places (Sundays excepted) as defendant should direct, at a salary of fifty dollars per month, defendant also to bear all hotel and traveling expenses. Excepting only as to the dispute hereinafter noticed it was conceded that the terms of the contract of employment were correctly set forth in an instrument, dated September 13, 1892, which was executed by both parties, the defendant acting by its manager; W. G. Halleck, who was the author of the document and had been in continuous possession of it. At the time of the commencement of this action there remained unpaid to plaintiff the salary for two months, during which time her services and attendance had not been required by defendant for the purposes of the exhibition of her hair, though she had remained in readiness to comply with any direction in that behalf; and on the trial defendant contended that pursuant to the terms of the contract no salary had accrued to plaintiff for that period. The contract was produced from defendant’s custody and contained the following: “ Said party of the second part (plaintiff) hereby engages herself to enter into the employ of the party of the first part (defendant) at the monthly salary of fifty dollars ($50) payable as follows, to wit: the said party of the second part is to exhibit her hair for the period of one month, and the salary thereof is to be reserved for the security of the party of the first part that the party of the second part will fully carry out the terms and conditions of this agreement That after the said party of the second part has worked and exhibited her hair for the period of one month, that her salary shall commence to run at the expiration of one month, and her salary shall be paid monthly, while so exhibiting, at the rate of fifty dollars ($50) per month, payable at the end of each month.”

The context of the instrument was type-written, except the words, “ while so exhibiting,” which were interlined in the handwriting of defendant’s manager; Halleck. Plaintiff denied that the interlineation had been made when she subscribed the instrument. Defendant maintained that it had been. Both parties supported their respective contentions by evidence, and upon the conflict thus ensuing the justice below decided in plaintiff’s favor-, and adjudged her entitled to the recovery of $100.

We have scrutinized the evidence with exceeding care, and duly considering the advantage had by the trial justice in observing the witnesses while under examination, we are unable to conclude that the judgment is against the weight of the evidence. Nor do we deem it at all material whether the interlineation was made before, or after plaintiff executed the instrument. The sense in which an instrument is to be interpreted is its apparent sense, that in which it will be commonly received, not the sinister, furtive sense of one of the contracting parties, a sense forced out of the language by technical precision. That plaintiff executed the instrument with the words interlined would only prove that the fraud was successful to that extent. It is utterly unreasonable and preposterous to suppose either that plaintiff intended to enter defendant’s employ for one year at a monthly salary of fifty dollars, the payment of which should be proportionate to the actual time and attendance required of her for the literal exhibition of her hair by the exigencies of defendant’s business, or the caprice of its manager, or that defendant, or its manager, understood such to be plaintiff’s intention. o A bare perusal of the instrument is convincing that it was intended to convey the meaning that the salary would be paid so long as plaintiff continued in defendant’s employ, and subject to its directions.

“Interpretation is the art of finding out the true sense of any form of words; that is, the sense which their author intended to convey, and of enabling others to derive from them the same idea which the author intended to convey." Lieber’s Hermeneutics, 11, “In no case of human life, in which we are called upon to act, to apply rules, or to understand what others say, can we dispense with common sense and good faith; but they are peculiarly requisite in interpretation, because its object is to discover something that is doubtful, obscure, veiled; which may, therefore, admit' of different explanations. If, without common sense, we may make even of strict syllogism an instrument, apparently, to prove .absurdities, how much more are those two ingredients of all honesty necessary in interpretation. Common sense and good faith are the leading stars of all genuine interpretation ” (77).

“ Good faith in interpretation means that we conscientiously desire to arrive at the truth, that we honestly use all means to do so, and that we strictly adhere to it, when known to us—it means the shunning of subterfuges, quibbles and political shuffling—it means that we take the words fairly as they were meant.” (80). Proceeding upon these fundamental principles, the following rules have been judicially evolved to serve as guides in arriving at the meaning of the parties to a contract, which, when applied to the case at bar, effectually sanction plaintiff’s recovery ; the language of a contract must be given a reasonable interpretation, Colt v. Phoenix Fire Ins. Co., 54 N. Y., 595, 597; if the language involves the intention of the parties in uncertainty and doubt an interpretation which will make the contract unreasonable and place one of the contracting parties entirely at the mercy of the other must give way to one which is equitable towards both, Russell v. Allerton, 108 N. Y., 288; 13 St. Rep., 629; no one will be suffered to take advantage of “adroit and slippery” language, Johnson v. Hathorn, 2 Abb. Ct. App. Dec. 465, 468; and if one of the contracting parties has, by the practice of artifice or duplicity in the use of language, misled or deceived the other respecting its meaning or effect, the sense in which the latter understood it will prevail in the interpretation of the language. Potter v. Ontario Ins. Co., 5 Hill, 149; Barlow v. Scott, 24 N. Y., 40; While v. Hoyt, 73 id., 505, 511.

Assuming plaintiff to have been a non-resident of this state the court below, notwithstanding, had jurisdiction of this action. The contract was entered into in Philadelphia, Pennsylvania, and required plaintiff to exhibit her hair at such places as defendant should direct In the absence of an agreement to the contrary, her .salary was payable to her when due at the place where she was at defendant’s direction for the time being. That was in the city of Hew York. Hence the cause of action arose there. Perry v. Eric Transfer Co., 28 Abb. N. C., 430; 46 St. Rep., 185. Section 3215 ■of the Code of Civil Procedure does not require the complaint in an action in the district court against a foreign corporation to state that the defendant has an office in the city of Hew York. It is sufficient if the fact be established on the trial. Hone of the exceptions taken to rulings on the trial present error.

Judgment affirmed, with costs.

Bookstaver and Pryor, JJ., concur.


author: Bischoff, J. Pryor, J.

text:
    Jeremiah Enright, Resp’t v. James M. Seymour, App’lt.

      (New York Common Pleas, General Term,

      Filed June 5, 1893.)

    Money paid—Burden of proof.
    In an action for money paid at defendant’s request the plaintiff testified to a request, "which defendant denied. There was also testimony of several witnesses that plaintiff’s reputation for truth and veracity was bad. Held, that the burden of proof rested with plaintiff, and that a finding in his favor was erroneous.
    Appeal from a judgment for plaintiff recovered in the district court in the city of New York for the tenth judicial district
    Action to recover money alleged to have been paid, laid out and expended at defendant’s request.

      Samuel E. Duffey, for resp’t; Henry Thompson, for app’lt
   Bischoff, J.

Upon allthe evidence I am of the opinion that the judgment of the court below is emphatically against the weight of the evidence, and that it should be reversed and a new trial ordered.

Plaintiff sued defendant to recover the sum of $250, which he claimed to have paid to one John Perdue at defendant’s request, for the purpose of effecting a settlement of differences between defendant and one Michael Grogan which arose from an altercation between Grogan and defendant’s son and servants. Assuming the evidence to be sufficient to show that plaintiff paid the sum to Perdue, it still remained to ascertain that it was so paid at defendant’s request, and the burden of proof in that respect rested with plaintiff. The latter testified to the fact of such a request. Defendant testified in denial of it. This at most created a conflict of testimony which the trial justice could determine upon the degree of credibility which he saw fit to attach to the statements of the witnesses respectively, after making due allowance for their personal interests in the result of the litigation, and their manner and appearance on the witness stand ; and with his determination under such circumstances only, we should hesitate to interfere.

But there was also testimony of a number of witnesses from which it appeared that plaintiff’s general reputation for truth and veracity was bad and that he was not to be believed under oath. A due consideration of that evidence cannot, in my opinion, fail to determine the preponderating effect of all the evidence in defendant’s favor.

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

Pryor, J.

I concur with Judge Bischoff, in the conviction that plaintiff’s story is incredible, and his claim altogether untenable.


author: Per Curiam.

text:
    Ernest H. Bird, Resp’t, v. James Everard, App’lt.

      (New York Common Pleas, General Term,

      Filed June 5, 1893.)

    1. Bailment—Liability op proprietor op bathing establishment por
    loss op clothing.
    The proprietor of a bathing establishment who furnishes to a customer a room for the purpose of disrobing thereby becomes the voluntary custodian of his apparel for profit, and is bound to exercise due care to guard it against loss or theft by others having access to the establishment with his permission, and is liable for any loss or theft which could have been prevented by the exercise of such care.
    2. Same—Negligence.
    It appearing that the loss or theft could have been prevented by the employment of une or more competent persons to guard against such occurrences, an omission to do so is want of ordinary care, and, therefore, negligence.
    3. Same—Evidence.
    Evidence of what plaintiff paid for the overcoat which was stolen is competent, and, in the absence of other proof, sufficient to establish its value at the time of the loss.
    Appeal from a judgment for plaintiff recovered in the district court in the city of New York for the sixth judicial district.
    Action to recover the value of an overcoat lost or stolen from plaintiff’s room while a guest at defendant’s bathing establishment.

      A. H. Alker, for resp’t; David M. Neuburger, for app’lt.
   Per Curiam.

Plaintiff sued to recover the value of an overcoat which he claimed was purloined from the room assigned to him for the purposes of disrobing, while a guest at defendant’s Russian and Turkish bath establishment in the city of New York. It seems to have been conceded on the trial that plaintiff left defendant’s establishment, several hours after he entered it, without an overcoat answering the description of the one he complained to have been taken from his room, and that he had it with him when he entered the room appears very clearly from his testimony, which is amply corroborated by that of his witness Goodwin. An effort was made on defendant’s part to discredit plaintiff and Goodwin by the testimony of several of defendant’s witnesses to the effect that when they entered defendant’s establishment both plaintiff and Goodwin were in such a state of inebriety as to be wholly unconscious of each other’s dress or appearance. A second effort on the part of defendant was to show that the room assigned to plaintiff was so constructed as to admit of no means of ingress except by the door of which plaintiff was furnished the key. Upon the conflict of evidence which ensued in both particulars the record presents no such preponderance in defendant’s favor as will enable us to say that the trial justice’s adverse determination was error.

From the very nature of the accommodations afforded by defendant’s establishment it seems entirely clear that while plaintiff was absent from the room assigned to him, and in the bath, his apparel, deposited in the room, was in defendant’s keeping. The assignment of the room for the purposes of disrobing was in effect a representation' by defendant that he would assume the custody of plaintiff’s apparel at that place.

Having received the sum demanded of plaintiff for the privilege of the bath, and assumed the custody of plaintiff’s apparel while the latter was enjoying the privilege, defendant became a voluntary custodian of plaintiff’s apparel for profit, and was bound to exercise due care to guard it against loss or theft by others having access to defendant’s establishment with his permission; and for any loss or theft which could have been prevented by the exercise of such care defendant was answerable in damages. Bunnell v. Stern, 122 N. Y., 539; 34 St. Rep., 218.

Assuming that there was no sufficient evidence of defendant’s want of care when plaintiff rested, the error, if any, presented by the exception taken to the trial justice's denial of defendant’s motion for dismissal of the complaint at that stage of the trial was cured by evidence subsequently introduced on behalf of either party, Painton v. North. Cent. R. R. Co., 83 N. Y., 7; and upon the evidence as it was finally submitted to the trial justice the conclusion is irresistible that the loss or theft of plaintiff’s overcoat could have been prevented had defendant, in view of the indiscriminate admission of persons as patrons of his establishment, employed one or more competent persons to guard against such occurrences. His omission to do so was want of ordinary care, and his want of ordinary care was negligence.

The only defense which was attempted on the trial was that plaintiff did not have an overcoat answering the description given with him when he entered defendant’s establishment to secure the bath, and when this failed a judgment for plaintiff was the inevitable result.

Evidence of what plaintiff paid for the overcoat was competent and, in the absence of other proof, sufficient to establish the value of the overcoat at the time of its loss. Hoffman v. Conner, 76 N. Y., 124; Campbell v. Woodworth, 20 id, 499; Wells v. Kelsey, 37 id., 143; Hangen v. Hachemeister, 114 id., 566, 572; 24 St. Rep., 526; Jones v. Morgan, 90 N. Y., 4, 11.

The judgment appealed from should be affirmed.

Bookstaver and Bischoff, JJ., concur.


text:
    The New York & New Haven Automatic Sprinkler Co., App’lt v. James F. Anderson, Resp’t.

      (New York Common Pleas, General Term,

      Filed June 5, 1893.)

    1. Contract—Conditions—Arbitrary withholding of certificate.
    A written contract provided that plaintiff should equip defendant’s factory with automatic sprinklers in accordance with the rules of the New York Board of Fire Underwriters, and that the price should only be payable ‘ ‘after a certificate of approval shall have been issued by the board. ” On the trial of an action to recover the contract price the plaintiff proved that all the work had been done, and examined by the board’s inspector, who reported to the board that the premises had been fully equipped, and all the requirements of the contract complied with. The board refused to give a certificate because (1) the premises were located beyond the reach of a fully organized, paid fire department; (2) provision was not made to supply the pipes with water automatically upon the opening of a sprinkler head; (8) the pump was not of 500-gallon capacity per minute, and (4) there was no guarantee that the steam would be maintained at all times to work the pump. The complaint was dismissed. ' Held, that the third and fourth grounds of refusal were conditions over which plaintiff had no control, and were fully within defendant’s control, and, therefore, that the refusal of the certificate on these grounds could not have shielded defendant from payment.
    2. Same—Evidence.
    In such case, questions put to the inspector of the board, as to whether the premises were beyond the reach of a fully organized fire department, and as to what use the certificate would have been if the premises had been located in the metropolitan district of the board,are competent on the question whether the withholding of the certificate on the first ground was arbitrary, and their exclusion is error.
    Appeal from a j udgment dismissing the complaint, and from, an order denying a motion for a new trial.

      Frederick M. Littlefield, for app’lt; Michael H. Cardozo, for resp’t.
   Bookstaver, J.

This action was brought against the defendant to recover upon two causes of action; the first being for the sum of $1,400, which the plaintiff claims the defendant agreed to pay for equipping his factory at Astoria, Long Island,' with its dry pipe system of automatic sprinklers, under the terms of a contract between the parties dated September 19, 1889; and also for extra work, labor and services on defendant’s premises at Astoria to the amount of $123.69. The contract provided that the plaintiff should equip the factory in question in accordance with the rules and regulations of the New York Board of Fire Underwriters, and that the price of $1,400 should only be payable “ after a certificate of approval shall have been issued by the New York Board of Fire Underwriters.” The plaintiff proved that all the work contemplated by the contract had been done; that the equipment was examined by Mr. Van Giesen, the inspector of the Board of Fire Underwriters, frequently, both before and after the work was done, who reported to the board that the premises had been fully equipped with automatic sprinklers, and he also testified that he had examined it, having the requirements of the contract in mind, and that all of the requirements of the contract were fully complied with by the plaintiff. It further appeared on the trial that the Board of Fire Underwriters had refused to give a certificate for the following reasons: (1) The premises were located beyond the reach of a fully organized, paid fire department; (2) Provision was not made to supply the pipes with water automatically upon the opening of a sprinkler head; (3) The pump was not of 500-gallon capacity per minute, and (4) There ” was no guarantee that steam would be maintained at all times to work the pump. The plaintiff also gave evidence tending to show the extra work done by it, and the amount. Upon the close of the plaintiff’s evidence, the defendant moved to dismiss the complaint on the ground, as to the contract work, that no certificate had been issued by the Board of Fire Underwriters, which was a condition precedent to the payment ; and as to the extra work, on the ground that no authority had been shown to do that work.

The plaintiff itself having made the condition precedent that the money for the contract work should not be payable until after a certificate of approval had been issued by the New York Board of Fire Underwriters, was bound by it, and could not maintain the action as to that, unless it were arbitrarily or unreasonably refused by the board, but if arbitrarily and unreasonably refused then it could recover notwithstanding such refusal. Highton v. Dessau, 19 N. Y. Supp., 395 ; 46 St. Rep., 922; Thomas v. Fleury, 26 N. Y., 33: Bowery N. Bk. v. Mayor, 63 id., 339; Nolan v. Whitney, 88 id., 650 ; Smith v. Alker, 102 id., 90; Doll v. Noble, 116 id., 232; 26 St. Rep., 629; Flaherty v. Miner, 33 id., 681; Thomas v. Stewart, 132 N. Y., 580; 43 St. Rep., 881; Crouch v. Gutmann, 134 N. Y., 45; 45 St. Rep., 470.

In contemplation of the contract the certificate ought to have been given when it was fully completed, provided there was no valid reason for the board of underwriters refusing the same. The fact that the pump was not of adequate capacity and that there was no guarantee that steam would be maintained at all times to work it, were conditions over which the plaintiff had no control, and were fully within the control of the defendant, and, therefore, the refusal of the certificate on that ground would not have shielded the defendant from payment, because he could not take advantage of his own wrong and thus defeat the payment of a just claim. We do not understand fully the second objection made by the board, which was in relation to there being no provision made to supply the pipes with water automatically. There is no sufficient evidence in the case to inform us on that point. The first objection may or may not have been a valid reason for withholding the certificate according to circumstances, and the rules of the board of fire underwriters, which, from the evidence, appear .to have been changed between the time of making the contract and the completion of the work to be done under it; but what these changes were does not appear from the evidence.

In order to show that the withholding of the certificate' upon the ground last named was arbitrary and unreasonable, the plaintiff asked the following question of Mr. Yan Giesen: “Were those premises in Astoria beyond the reach of a fully organized fire department ? ” which was objected to by the defendant, and the objection sustained. He was also asked the question if the premises which were located in Astoria had been located in the Metropolitan district of the board of fire underwriters, what would have been the use of that certificate, which was also objected to by the defendant, and the objection sustained. To both of these rulings the plaintiff duly excepted. We think under the peculiar circumstances of this case these questions should have' been allowed, as it was essential to the plaintiff to prove the withholding of the certificate, upon the ground that it was beyond the reach of a fully organized paid fire department, was arbitrary, and the questions tended directly to prove that, or at least to prove circumstances from which it could be inferred.

We also think that the evidence of extra work done, and the authority for doing it, was sufficiently established to require the submission of that question of fact to the jury, and it was error to dismiss the complaint as to it.

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

Bischoff and Pryor, JJ., concur.


text:
    The Bradley Fertilizer Company, Resp’t, v. The South Publishing Company, App’lt.

      (New York Common Pleas, General Term,

      Filed June 5, 1893.)

    1. Corporations—De facto.
    In cases of defacto corporations there must have been at least an attempt made to organize Under some law; if no such attempt has been made, and vet the parties assume to act as if there had, the concern is not a de facto corporation, but a sham and a fraud, and the parties connected with it will he held liable as co-partners, and not as members of a corporation.
    2. Same.
    While the word “company” is frequently used to denote an incorporated association, it does not necessarily involve that idea either in speech or at law.
    3. Same.
    The fact that the owner of a business dealing under the name of. “ South Publishing Co.,” styled himself president and manager, and that an employe was the former publisher of the paper, published by the South Publishing Co., and another employe editor, amounts to nothing as proof of an incorporation.
    4. Same.
    Nor is it of the least consequence, as affecting the question of a de facto corporation, that such employes were afterwards, through the owner, made stockholders of the “South Publishing Co.,” when incorporated.
    5. Same—Seal.
    The fact of a seal being used by a business concern is no proof of its incorporation.
    Appeal from a judgment of the general term of the city court, affirming a judgment of the trial term in favor of plaintiff, entered upon the verdict of a jury.

      Herbert H. Gibbs, for app’lt; George Walton Green, for resp’t.

       Reversing 49 St. Rep., 924.

   Bookstaver, J.

The action was brought to recover a balance of $309.60 alleged to be due for goods sold and delivered to defendant between February, 1885, and May, 1887. There have been two trials of the issues; the first resulted in a judgment by direction of the court in favor of the plaintiff, but upon an appeal to this court the judgment was reversed and a new trial ordered. At the second trial, the jury found a verdict for the plaintiff, and the general term of that court affirmed the judgment thereon, and hence this appeal.

After the coming in of the verdict, the defendant moved for a new trial on the usual grounds, and the motion was denied. No order on this motion was entered, and the appeal is from the judgment only. Therefore, nothing can be reviewed upon this appeal but the defendant’s exceptions. Boos v. Ins. Co., 64 N. Y., 242; Del Genovese v. Mayor, 14 St. Rep., 197; Zoller v. Grant, 19 id., 311; Third Ave. R. R. Co. v. Ebling, 100 N. Y., 98; Jones v. Sparks, 1 St. Rep., 476; Dixon v. Dixon, 12 id., 505.

At the close of plaintiff’s case, counsel for defendant moved to dismiss the complaint on the grounds, among others, (1) That the plaintiff had wholly failed to prove that defendant was a corporation in fact or in law at the time mentioned in the complaint; (2) that the plaintiff had failed to prove legal incorporation at the timé mentioned in the complaint; (3) that there was no proof that the defendant received any of the goods or merchandize mentioned in. the complaint or in the exhibits put in evidence ; and (4) that there was no allegation that the defendant assumed or promised to pay the alleged indebtedness by whomsoever incurred, and at the close of the whole case renewed the motion on these grounds, and on the further grounds, among others, that it had been clearly proved that the defendant was incorporated under the laws of the state of Florida in January, 1888, and did not exist in law prior to that time; also, that the defendant could be held liable only for its own acts done after it had a legal existence, and that the defendant never received any of the merchandize in question or any profit or advantage therefrom, and that it never assumed the payment of the debt in question. These motions were denied on each of the grounds, and defendant duly excepted thereto. It also, by its counsel, excepted to the submission of the question of whether or not it- was a cle facto corporation at the time the debt was incurred to the jury. These exceptions raise the questions to be considered upon this appeal, and the one principally contested is whether or not the plaintiff had on the last trial offered any evidence from which a jury could infer the existence of a de facto corporation at the time the indebtedness was incurred.

When this case was before us upon the former appeal, 44 St. Rep., 119, the learned judge delivering the opinion of the court-said: “A de facto corporation is constituted by a user of corporate franchises, and by acts in the nature of corporate proceedings under color of organization, Childs v. Smith, 55 Barb., 56; or where proceedings have been taken in professed compliance with some law authorizing the formation of a corporation, and there are acts of subsequent user, M.E.U. Church v. Pickett, 19 N. Y., 482; or where there is a user of corporate franchises under color of an act authorizing the incorporation. Bank of Toledo v. International Bank, 21 N. Y., 542.”

The power of creating corporations is one appertaining to sovereignty, and is exercised by that branch of the government in which it is constitutionally invested. Formerly the right to corporate existence was always by a special charter or act of incorporation ; but the power of special legislation of this kind is now restricted or abolished in nearly all of the states, and corporations are usually formed by persons complying with the general laws of the state on this subject. A corporation must have a full and complete organization and existence as an entity, and in accordance with the law to which it owes its origin, before it can assume its franchises, or enter into any kind of contract or transact any business. 4 Am. & Eng. Enc., 197, and authorities there cited. When it has fully complied with the law under which it is organized, it is a corporation de jure; but where the persons desiring to form such a corporation have made the attempt to comply with the law, and have failed in some essential matter, and afterwards have done business under such defective organization, then it is known as a corporation de facto. But it will be observed in cases of defacto corporations there must have been at least an attempt made to organize under some law. If no such attempt has been made, and yet parties assume to act as if there had, the concern is not even a de facto corporation, but a sham and a fraud, and all the parties connected with it will be held liable as copartners, and not as members of a corporation.

Thus it will be seen that two things are necessary to be shown in order to establish the existence of a corporation de facto ; first, existence of a charter or some law under which a corporation with the powers assumed might lawfully be created; second, a user by the party to the action of the lights claimed to be conferred by such charter or law. Authorities above cited, and Remington Paper Co. v. O' Dougherty, 65 N. Y., 571; De Witt v. Hastings, 69 id., 518 ; Finnegan v. Knights, etc., 53 N W. Rep., 1150; Demarest v. Flack, 16 Daly, 337; 32 St. Rep., 675. In the case under consideration there is not a scintilla of evidence that there was any attempt at organization under the laws of any state until the certificate of incorporation was filed on January 6,1888, long after all the transactions for which a recovery is sought in this action had taken place. Nor was there any attempt made to show any preliminary agreement to form such a corporation before the 6th of January, 1888. On the other hand, the evidence is clear and uncontradicted that prior to 1872-8 one Price and another owned and published a paper known as “ The South,” under the name of “ The South Publishing Company.”

About the year last mentioned Mr. Clough purchased “The South” and the name “The South Publishing Company” of Price, _ who had previously purchased his partner’s interest. From that time to the time of the incorporation of the company Mr. Clough owned and managed the business individually, and as-the sole owner thereof, and all persons in any way connected with the business were employed and paid by him, and no one else had any voice in the management of the affairs of the concern. He continued the use of the name which he had purchased with the good will, etc., but made no representations as to any incorporation of the company as far as we have been able to see from the evidence. The contract for advertising out of which this action arises, was made by him individually in December, 1884, under the style of the South Publishing Company. No one else at that time had any interest in the business. Plaintiff does not claim that at that time it made any inquiry as to who composed the South Publishing Company, or that in making the contract it relied upon the incorporation of the company, or that any representations were made as to its incorporation. The plaintiff did not even show that Mr. Clough or anyone else held the concern out to the public or to the plaintiff as a corporation, although its counsel so argued on this appeal.

The fundamental error into which he seems to have fallen is in confounding the words “ company ” and “ corporation he frequently used them as synonymous; but while the word company is frequently used to denote an incorporated association, it does not necessarily involve that idea either in common speech or at law. The Imp. Diet., sub. “ company,” says : “ The word is applicable to private partnerships or to incorporated bodies; but when there are only a few individuals associated, the concern is generally called a copartnery, the term company being usually reserved for large associations.” While it defines a corporation as “a body politic or corporate, formed and authorized by law” to act as a single person, Bouvier’s Law Diet, defines “ company ” as “an association of a number of individuals for the purpose of carrying on a legitimate business,” and then proceeds, “ this term is not synonymous with partnership, though every such unincorporated company is a partnership. * * * When these companies are authorized by the government, they are known by the name of corporations.” We all know how frequently, especially in late years, the word company has been used by private enterprises which are no more than copartnerships; so the use of the style “The South Publishing Co.” did not hold out the concern as a corporation, nor as far as the evidence shows was any one led to deal with it as such.

Nor do we think that the testimony of Mr. Crosby, a former employe of the concern, warrants respondent’s counsel in claiming, as he does, that there were any acts in the nature of corporate proceedings under color of organization by the “South Publishing Co.” prior to January, 1888. In the first place there was no attempt at an incorporation under any law shown, and Mr. Crosby’s testimony is far from showing any facts which would warrant such an inference, nor does his testimony show that there was any connected action of any kind under color of organization or otherwise whereby Mr. Clough was appointed president or general manager of the concern. That he was manager and gave himself out as such is true enough, but that was because he was owner of the business, and not because he was elected or appointed thereto by any one other than himself. Besides Mr. Crosby in his deposition is extremely careful not at any time to swear that Mr. Clough was president of any corporation ; he always couples the word president with or manager.

The fact that another employe was the publisher of the paper amounts to nothing as proof of an incorporation, nor does the other fact testified to by Crosby, that another employe was editor, aid the contention ; such offices are not necessary or common offices in corporations. Nor in our judgment is it of the least consequence, as affecting the question of a de facto corporation, tha" these employes were afterwards, through Mr. Clough, made stockholders of the corporation when formed; nothing is more natural than to do this with tried and trusted employes when a private business is to be converted into a private corporation. ■

The only other ground on which respondent claims that the defendant was a corporation de facto prior to January, 1888, is that in the conduct of the business a seal was used, and that Mr. Clough assumed to act as the general manager and president, and sent out letters in the corporate name, and that goods were purchased in the name of the “ South Publishing Co.” But here again, it is met by the fact that there is not the shadow of proof of any attempt at actual incorporation. The fact of a seal being used in the business is no proof of this; seals are often used by private enterprises not incorporated, even by individuals, to authenticate the articles made by them or for mere convenience. As before shown, the contention that Mr. Clough acted as president at any time is not sustained by the evidence; that he acted as manager, we have before commented on. All of the foregoing facts taken together and most strongly against the defendant amount only to mere representations that there was an existing corporation when none existed in fact or law. This might bind the parties making the representation as copartners and make them liable for the debt, but could not bind the present corporation, which was not formed until long afterwards. Thus the case discloses that there was no attempt at organization, no use of corporate franchises and nothing in the nature of corporate proceedings prior to the actual incorporation in 1888; and ■ these facts taken in connection with the incorporation in 1888, for which there is no conceivable motive except the honest desire to form an incorporated company out of a private concern, leave no possible ground for the contention that there was a de facto corporation before that time.

Nor can this be inferred simply because the defendant refused to produce its books from which the plaintiff proposed to show a record of corporate proceedings during the time prior to its actual incorporation. It was not shown that any such books were in the possession of defendant, nor was any attempt made to show that there was a record of such proceedings prior to 1888. On the ■other hand, we think it clear that there were no such proceedings. Under such circumstances general repute cannot make a ■corporation de facto of what was clearly no corporation.

The cases cited by respondent in support of his contention are not applicable to a case like the present, where it affirmatively appears not only that the company was incorporated long after the ■cause of action arose, and that before it was conducted as a private enterprise although the word “ company ” was used.

. There are many cases which hold that where a company has a ■de facto existence it will be estopped from denying its existence as between itself and those with whom it has had dealings. But none of them are applicable to this case. There is an entire failure of proof that there were any dealings with the incorporated defendant or that the goods in question, or any part of the proceeds thereof, ever came into the possession of the defendant, or that it received any benefit therefrom, or that it at any time or in any manner undertook to pay this obligation. On the other hand, the testimony is un contradicted that the arrangement was made with Mr. Clough, and that these goods came into his possession, and that the proceeds went into his bank account and were used exclusively by him, and that none of it ever went to the defendant.

The sending by the plaintiff to the defendant of the bill of October 12, 1889, was not an account stated between the parties, and the trial court erred in allowing the amendment in respect thereto. The question of an account stated was before us on the former appeal, and the evidence is hot in any way varied upon this, and what was then said we regard as a complete answer to that -contention.

We, therefore, think that the court erred in refusing to dismiss the complaint, and that as this case has been tried twice, and twice appealed to this court, and there was an utter failure of proof to support plaintiff’s contention, the judgments of the general and trial terms of the city court should be reversed and the complaint dismissed under Fuller v. Kemp, announced in the Law Journal May 3, 1893; 51 St. Rep., 935, with costs in the court below and on the appeals to this court to the appellant

Bischoff and Pryor, JJ., concur.


text:
    William M. Morowske et al., Resp’ts, v. William F. Rohrig, App’lt.

      (New York Common Pleas, General Term,

      Filed June 5, 1893.)

    1. Contract—Evidence.
    In an action brought to foreclose a mechanic’s lien, the complaint al leged a written contract, and there was no allegation of any other contract, nor any pretence that the written one did not contain the whole-contract, nor did the evidence disclose any other state of facts. JIeldr that conversations preceding the written contract were inadmissible under the pleadings, and even if admitted without objection and exception, could not vary or add to the written contract.
    2. Same—Time of performance.
    Where a written^ontract is silent as to the time of performance, the law implies that it should be performed in a reasonable time, and evidence of a contemporaneous oral agreement is inadmissible, and cannot be considered to vary the construction to be legally implied from the writing: itself.
    8. Same.
    In such case, a statement by defendant to plaintiffs that “ there would, be no delay in getting the material,” cannot reasonably be construed to-amount to a warranty that the materials would be supplied without any delay.
    4. Same—Custom.
    In such case evidence of custom and usage is inadmissible under the pleadings, and inadmissible to contravene the legal construction implied from the written contract.
    5. Same.
    Where the complaint alleges full performance of a contract on the part of plaintiffs, evidence of plaintiffs’ excuse of non-performance is inadmissible.
    Appeal from a judgment and order of the general term of the city court, affirming a judgment of the trial term of that court.

      Simon Sultan, for app’lt; Gumbleton, Flanagan & Hottenroth, for resp’ts.

       Reversing 51 St. Rep,, 946.

   Bookstaver, J.

This action was brought to foreclose a mechanic’s lien for an alleged balance due on contract, and also for extra work. The complaint alleged a written contract. There was no allegation of any other contract, nor any pretense that the-written one did not contain the whole contract between the parties. Nor did the plaintiff at any time move to amend the pleadings to conform to the proof or otherwise. Not • only did the complaint allege the written contract, but it also claimed full performance of it. On the trial the plaintiffs were allowed to give evidence of their excuse of non-performance under this allegation of full performance, and were also allowed to give evidence, as an excuse for such non-performance, of a breach of an alleged oral contract not set up by the plaintiffs in any of their pleadings, yet forming a basis of the following findings of fact made by the justice who tried the case: “7. That the duty was imposed on the defendant, under said contract, to furnish to the plaintiffs said materials, proper in condition to the work required to be done by the plaintiffs, at- proper periods of time which would -enable the plaintiffs to complete their contract and to do their work without interruption.” And, “ 11. That by reason of the failure of the defendant to furnish the plaintiffs with proper material at proper intervals and in proper time, the plaintiffs were prevented by the defendant from completing their contract, and on or about the 5th day of December, 1891, the said contract was terminated by said defendant, who refused to permit the said plaintiffs to complete the same. That said plaintiffs were ready and willing to complete the work required to be done under said contract on said date, and that the said work was substantially performed.” Both of which findings were duly excepted to by the defendant.

And these findings of facts raise a question of law for review on this appeal. For it has been held where a finding of fact by a court or referee is without evidence to support it, it is a ruling upon a question of law, and if excepted to presents a legal question reviewable upon appeal. Halpin v. Ins. Co., 118 N. Y., 165; 28 St. Rep., 788; Van Bokkelen v. Burdell, 180 N. Y., 141; 41 St. Rep., 312. And it makes no difference whether this finding is nominally a finding of fact or not; it is in reality a finding of law. So too, where there is no legal evidence admissible under the pleadings, we think it is equally a question of law.

Conversations preceding the written contract were inadmissible under the pleadings, and even if admitted without objection and exception, could not vary or add to the written contract. The complaint distinctly alleged the written contract as the only contract between the parties. Neither the complaint nor the evidence anywhere disclosed that the writing did not contain the whole contract between them, or that only a part of the contract was reduced to writing. There was, therefore, nothing in the case which could let in oral declarations as to what the contract was. Engelhorn v. Reitlinger, 122 N. Y., 76 ; 33 St. Rep., 275; Thomas v. Scutt, 127 N. Y., 133; 38 St. Rep., 692; Case v. Phoenix Bridge Co., 134 N. Y., 78 ; 45 St. Rep., 603. The question of the admissibility of conversations preceding a written contract is not merely a question of evidence; it is a question of contract. All negotiations, all conversations preceding the written contract are conclusively presumed to be merged in it, and whether given in evidence or not, under objection or without objection, they cannot control the written contract except in the sole case of fraud or mistake. The evidence of the conversations in this case which preceded the written contract, could not be considered at all under any legal principle, whether there was a proper objection made to it or not. Tunbridge v. Read, 22 St. Rep., 764; Wilson v. Deen, 74 N. Y., 531. The authorities are clear that where, as in this case, the written contract is silent as to the time of performance, the law implies that it should be performed in a reasonable time, and evidence, of a contemporaneous oral agreement is inadmissible and can not be considered to vary the construction to be legally implied from the writing itself. Furniture & Lumber Co v. Mead, 42 Minn., 420 ; Stone v. Harmon, 31 id., 512; La Farge v. Rickert, 5 Wend., 187; Driver v. Ford, 90 111., 595; Abb. Tr. Ev., 295; Pope v. Terre Haute Car & Mf'g. Co., 107 N. Y., 61; 11 St. Rep.,, 209.

The conversation preceding the written contract being no legal evidence to show any different than a reasonable time for the per-, formalice of the contract on either side, there was no evidence of any duty imposed on the defendant by the contract which made him liable for breach of contract if there was any interruption in the furnishing of the material as found by the court below in the findings before referred to. Besides, we think these findings were entirely unsupported by the evidence given. The conversation preceding the written agreement, even if considered for what it was worth, in no manner justified the finding based thereon. The plaintiffs were told that the defendant did not personally furnish the material, and who his contractor was that did, and where his place of business was. The defendant m telling the plaintiffs. “ there would be no delay in getting the material,” plainly referred to the fact that he had made a contract and had given out the work, and it amounted to no more than a mere opinion that the work would progress without delay. Such a conversation we think cannot be reasonably construed to amount to a warranty that the materials would be supplied without an}r delay. In the-first place, there was no consideration for making such a contract none had been shown either in any corresponding engagement on the part of the plaintiffs to do the work without delay and regardless of the time of getting the material or in anything which is equivalent to a consideration. Therefore, there was no mutuality of agreement shown. Consideration and mutuality are two essential elements of a contract which were lacking in this case.

Evidence of custom or usage was inadmissible under the pleadings, and was inadmissible to contravene the legal construction implied from the written contract that the work was to be done and material furnished in a reasonable time. And the court, therefore, erred in allowing such evidence to be given under defendant’s objection. Evidence of usage or custom is not admissible without an allegation in the pleadings of the existence of the-custom, Monk’s Van Santvoord’s Pl., 563. Usage or custom cannot be proved to contravene a rule of law. or to vary the legal construction of a written instrument. Hopper v. Sage, 112 N.Y., 530; 21 St. Rep., 491; Collender v. Dinsmore, 55 N. Y., 200; Silberman v. Clark, 96 id., 522; De Witt v. Berry, 134 U. S. 306.

The evidence of plaintiffs’ excuse of non-performance of the written contract was improperly admitted under the allegation of full performance in the complaint. That excuse consisted of the alleged breach of duty imposed by the contract on the defendant to furnish the material without delay and without interruption. Such evidence was not admissible, as before stated, not only on the ground previously stated, but also because the complaint set forth full performance and no excuse for non-performance. Elting v. Dayton, 43 St. Rep., 363; Hosley v. Black, 28 N. Y., 438. And it is no answer to this that the court below did not give the plaintiffs any judgment for the balance claimed in the complaint under the contract. The findings before referred to plainly show that the excuse of non-performance of the written contract was considered by the court below as one of the facts in the case justifying .the final judgment rendered.

There was no legal evidence warranting the finding that there was any special agreement made on December 5, 1891, under which the $607.37 had to be disallowed as a payment on account of contract or extra work, nor was such finding within -the case or issue made by the pleadings, and was excepted to. Romeyn v. Sickles, 108 N. Y., 650; 13 St. Rep., 864; Rutty v. Consolidated Fruit Jar Co., 24 id., 640.

But respondent claims that the judgment cannot be reversed, as it was based upon a conclusion of law made by the trial justice which was not excepted to by the defendant. But the findings on which such a conclusion of law was based were excepted to, and as we have before shown such findings were clearly erroneous under the pleadings, and the basis for such a finding of law having fallen, the finding goes with it.

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

Bischoff and Pryor, JJ., concur.


text:
    Morris A. Myers, Resp’t, v. Annie Cohen, App’lt.

      (New York Common Pleas, General Term,

      Filed June 5, 1893.)

    1. Brokers—Commissions—Evidence.
    In an action to recover the commissions of plaintiff’s assignor, a broker, employed as such by defendant in the purchase of real property, the deed to defendant of the premises purchased is admissible in evidence, being relevant and material to the fact of defendant’s purchase.
    3. Same.
    In such case, defendant’s witness was asked, on his direct examination: “ Do you know why this expression was put in the contract ‘ Brokerage, if any ’ ? ” Held, that the question called for the witness’ conclusion, and the objection to the question upon that ground was properly sustained.
    3. Same.
    The provisions inserted in the contract of sale by defendant and the vendor as to who should pay the brokerage could not affect the question whether or not plaintiff’s assignor was employed by defendant, and questions thereon are properly excluded.
    Appeal from a judgment of the general term of the city court of New York, which affirmed a judgment for plaintiff entered upon a verdict in his favor.
    Action to recover the commissions of plaintiff’s assignor, a broker, employed as such by defendant in the purchase of real property.

      Edw. W. S. Johnston, for resp’t; Richard M. Henry, for app’lt.

       Affirming 51 St. Rep., 494.

   Bischoff, J.

—Though inthe purchase of the real conveyed to her, as well as in the employment of plaintiff’s assignor, as broker, to effect the purchase, defendant may have acted as the guardian of her infant children, she was none the less personally liable for the broker's commissions. Douglass v. Leonard, Com. Pl. Febr., 1892, 44 St. Rep., 293 ; see also interesting note appended to Johnson v. Leman, 19 Am. St., 67.

An exception taken to the denial of a motion for a new trial is not available on appeal from the city court of New York to this court. Grier v. Hazard & Co., 39 St. Rep., 74; Carroll v. O'Shea, 51 id., 579. We must assume that there was sufficient evidence of every fact essential to plaintiff’s recovery because the record does not disclose a motion for dismissal of the complaint, or that a verdict be directed for defendant, when both parties rested, and an exception to the denial of either of such motions, Barrett v. Third Ave. R. R. Co., 45 N. Y., 628; Schwinger v. Raymond et al., 105 id., 648; 7 St. Rep., 544, and we are precluded by the judgment of affirmance of the court below from any consideration of the weight of the evidence. Arnstein v. Haulenbeek, 16 Daly, 382; 34 St. Rep., 297; Smith v. Pryor, 16 Daly, 169 ; 30 St. Rep., 553 ; Rowe v. Comley, 11 Daly, 318. The motion made for dismissal of the complaint when the introduction of direct evidence for plaintiff was closed, and the exception taken to its denial, are not available for the assignment of error, because any defect in the proof then remaining was cured by evidence subsequently adduced by either party. S. & S. Plank Road Co. v. Thatcher, 11 N. Y., 102; Tiffany v. St. John, 65 id., 314, 317; Painton v. North. Cent. R. Co., 83 id., 7.

Three exceptions appear to the admission of evidence of conversations with one Wittekowski in defendant’s absence. The facts in evidence, however, support an inference of Wittekowski’s authority from defendant to employ plaintiff’s assignor, and conversations with him concerning the subject matter of the latter’s employment were both relevant and material. Another exception was taken to the admission in evidence of the deed of the premises to defendant. The deed was relevant and material to the fact of defendant’s purchase, and so properly admitted. Defendant’s witness Moeran was asked in his direct examination : Do you know why this expression was put in the contract 1 Brokerage, if any ?’ ” This called for the witness’ conclusion, not for the facts, and the objection to the question was upon that ground properly sustained. The contract executed by defendant for the purchase of the premises subsequently conveyed to her contained the following, “ Brokerage, if any, to be paid by the party of the second part,” defendant, and defendant’s witness Meyers was asked on his direct-examination: “ Tell us what occurred in reference to putting in that contract those words, 1 Brokerage, if any ?’ ” We fail to see the materiality of this question or the testimony it sought to elicit. The contract spoken of was by defendant with a person other than plaintiff’s assignor, and why they inserted the provision concerning the brokerage could not affect the question whether or not plaintiff’s assignor was employed by defendant, which was the question at issue. If the conversations of the persons present at the time of the execution of the contract were material to the question at issue on the trial it was incumbent upon defendant’s counsel to apprise the trial court of the grounds of the materiality. Trustees, etc., First Baptist Church v. Brooklyn Fire Ins. Co., 23 How. Pr., 448. This was not done. Two further •exceptions remain, but as no ground was assigned for the objection to the evidence in either case, they are ineffectual for any purpose. Cruikshank v. Gordon, 118 N. Y., 187; 28 St. Rep., 784

Judgment affirmed, with costs.

Bookstaver, and Pryor, JJ., concur.