author: Pratt, J.

text:
    Thomas Cochran et al., Trustees, Pl’ffs, v. The Anglo-American Dry Dock & Warehouse Company et al., Def’ts.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893.)

    1. Corporations—Mortgage bonds—Collateral security—Redemption.
    Where a trust company offered for sale at public auction 384 $500 bonds, of a series of 500, secured by mortgage held by it as collateral to a note of $48,500 with authority to sell, and purchased them itself for $5.-000, no others bidding, the company intentionally discouraging competition by having agreed to give the mortgagor an opportunity to redeem the bonds after the sale, and subsequently sold the bonds to D. for $48,863, who in turn sold them to V. for one dollar, Held, that the mortgagor was entitled to redeem the bonds, and that V. could only recover therefor $43,-863 and interest.
    3. Same—Validity.
    Where a corporation, which was practically insolvent, and its directors cognizant of the fact, gave a mortgage to secure a series of bonds issued by it, and placed the bonds with a trust company to sell and pay off its indebtedness, Held, that the bonds were not utterly void, but were valid in the hands of purchasers to the extent of the amount paid for the same.
    3. Same—Reference.
    Where, in an action to foreclose a mortgage given by a corporation to trustees to secure bonds, the corporation does not defend, and stockholders are allowed to intervene and contest as to the amount due, and the case is referred to ascertain such amount, testimony should be taken as to the merits of all claims for which all the bonds were held, no matter what may have been conceded by the corporation through its trustees as to the amounts due.
    Appeals by plaintiffs and by defendants, Buckley and' Stanley, from certain parts of a judgment in an action of foreclosure.

      Clarence F. Birdseye, for pl’ffs ; Artemus H. Holmes, for def’t, Buckley ; William H. Dykman, for def't, Stanley.
   Pratt, J.

This is an action to foreclose a mortgage made by the defendant company to the plaintiffs, as trustees, to secure a series of 500 bonds of $1,000 each, dated Aug. '5, 1886. All the bonds, save twenty, have 'been issued and are still outstanding. The mortgagor did not defend. W. F. Buckley, a stockholder and creditor of the mortgagor, applied to be made a party defendant. " An order of reference was made on that motion to compute the amount due, and Mr. Buckley was allowed to intervene with leave to defend and contest as to the amount due, and he and every other party in interest was thereby allowed to contest the validity and amount due upon any of the bonds. Mr. Buckley, in both above capacities, and Richard Gurney, Jr., and Ira N. Stanley as stockholders, availed themselves of the privileges provided by this order of reference. The referee made his report. The plaintiffs and Buckley and Stanley excepted thereto. Then-exceptions were argued before and overruled by the special term. Judgment was entered to this effect Dec. 29, 1892, directing a sale of the mortgaged premises. These exceptants have each appealed from parts of the judgment.

The referee found that the mortgagor was insolvent when the mortgage was made, and had been insolvent for a long time prior thereto, but that the mortgage was not made in contemplation of insolvency.

It appears by the findings, without exception, that the mortgage in suit was the third one which had been made by the mortgagor. The first one was made August 15, 1881, to said Buckley and the plaintiff Cochran, as trustees, to secure a series of 800 bonds of $1,000 each, bearing six per cent interest payable at or before May 1, 1896. These bonds were all sold to the Guarantee Trust & Safe Deposit Co. of Philadelphia, and are still outstanding. The mortgagor afterwards became indebted to that company in $43,500 ; and, on April 12, 1886, made its second mortgage to that company to secure the payment of that indebtedness on or before April 14, 1889, with interest. It also became indebted to other persons in large sums, and the mortgage and 500 bonds in suit were authorized by its board of trustees for the purpose of paying the debts accrued subsequent to the first mortgage, and in order to raise money for uses of the corporation. On August 11, 1886, the mortgagor's board of trustees resolved that, after applying so many of these new (500) bonds at par as might be necessary to liquidate its existing floating indebtedness, the balance should be deposited with the Philadelphia company as collateral for the $43,500 debt secured by the second mortgage. It was contemplated that that company should sell those bonds and pay that debt out of the proceeds of such sales, and apply the balance of such proceeds to the uses of the mortgagor as it might require. That resolution authorized the delivery of the mortgagor’s note to the Philadelphia company for the $43,500 debt. The precise course authorized by this resolution was not pursued. On the contrary, the mortgagor’s officers settled with the Philadelphia Trust Company for the debt secured by the second mortgage by giving its note dated at Philadelphia August 17, 1886, for $43,-408.74, with interest, payable on demand, and delivered 284 of the 500 new bonds as collateral thereto, with the agreement that the holder might sell that collateral at any broker’s board or at public or private sale, without advertisement or notice, and apply the proceeds in payment of that sum and interest, returning the surplus, if any, to the maker, and the second mortgage was thereupon cancelled; so that the mortgage in suit became the second mortgage, and will be hereafter spoken of as such.

This Philadelphia Company did not sell any of these bonds, as contemplated by the resolution of August 11, 1886. There was no market for them. It held the note and the 284 bonds until November 15, 1890 ; and then, after repeated demands for payment of the note, gave formal notice that it would sell the bonds. It also gave public notice of its proposed sale for November 25, 1890, at the exchange in Philadelphia, of which proposed sale the mortgagor had due notice. It was represented at the sale through Mr. Simpson, its treasurer. The bonds were sold at the time and place specified in the notice, and they were bid in by the trust company at $5,000, but the referee has found that the sale was not fairly conducted; that the trust company intentionally discouraged and prevented any competition at the sale, and thus was enabled to, and did bid in the bonds at about one-eighth of their value. The referee has also found that the trust company before the sale agreed to give the mortgagor an opportunity to redeem the bonds after the sale, and that it in this way prevented competition at the sale. He holds that this sale ought not to prevent the mortgagor from redeeming these 284 bonds. The trust company subsequently sold these bonds and its claim to Drexel, Morgan & Co. for $43,862.10 on November 28, 1890, and they assigned them to Arthur C. Vaughn. The proofs show that this sale to Vaughn was on February 14, 1891, in consideration of one dollar. The referee has included the whole principal sum of these 284 bonds, and the interest thereon, in the amount due under this mortgage, but he has carefully stated that the debt for which they were held as collateral, including interest, was but $47,480.72, and that Vaughn is entitled only to that sum with interest for those bonds. The plaintiff contends that this is erroneous. We think not. The finding in substance is that Drexel, Morgan & Co. took no better title than the trust company had to these bonds, and that Vaughn is in no better position. We see no occasion to criticize this disposition of Vaughn’s holdings.

The only question left on this branch of the case is whether or not the judgment follows these findings in this respect. As we read, its provisions it protects the right of the parties as thus decided by the referee, and that seems to be the view of the parties who have appealed.

It provides that the sheriff, in distributing the proceeds of the sale, shall pay to the holders' of these bonds, not the sum due on the face of the bonds, but the sums found due to the individuals who hold them. The provisions of the judgment in reference to payment in bonds and coupons by purchasers at the sale may seem somewhat confusing on first reading, but the effect thereof is simply to give the individual who holds bonds as collateral the right to'a dividend on the face of his bonds until he gets the amount of his debt, but no more. If such holder’s dividend is greater than the amount actually due to him upon his debt, the surplus, if any, inures to the benefit of the mortgagor, that is to say, it remains in the sheriff’s hands applicable to the sums due to other bond creditors under the mortgage. This, in effect, enables the mortgagor to redeem these bonds; and that, upon these findings, and the evidence, is in consonance with justice of the premises.

We now proceed to examine other questions. It is claimed that, because the mortgagor, being a corporation, etc., was insolvent, and its directors were cognizant of that fact, all acts through which they secured bonds under this mortgage, and the bonds themselves in their hands, are utterly void because necessarily in contemplation of insolvency, within the meaning of that phrase as-used in the statute. We do not thus understand the rules governing the case. Speaking generally, these bonds were given in fair business transactions with the mortgagor, the obvious purpose of which was to save the company and its property, if possible; and they were reasonably adapted to that end, and not, in any respect, out of the ordinary course of raising money or adjusting ordinary affairs. The company received clear benefit from these transactions, and there has been nothing like rescission or any offer to rescind or restore those benefits which it received. The case,, therefore, seems to fall within the rule of Duncomb case, 84 N. Y., 190. We think the referee was right in holding that the bonds were.not utterly void.

We think, however, that the judgment must be reversed, and the case sent back to the referee to take testimony with respect to the actual merits of the claims for which all the bonds, other than the 284 above alluded to, were held._ The purpose of the order of reference was that Buckley, and every other party in interest, should be allowed to appear before the referee and contest the validity or amount due upon any of the said issue of bonds. This means that the court desired information of the actual indebtedness of this company to each holder of a bond, no matter what may have been conceded as to the amount of indebtedness by the company through its trustees; that may have been erroneous, or even fraudulent. This intervention was allowed for the purpose of enabling stockholders and creditors to raise and litigate ii$ this summary manner any and every question which the)r could raise in any manner, or in any action or proceeding. This, be it observed, is not at all inconsistent with the point above decided, viz., that the possessors of, these bonds should not be allowed to participate at all in the proceeds of this sale of the mortgaged premises. If they were honest creditors, or advanced money as a' present consideration for the bonds, they stand secured for their honest claims the same as any other honest creditors to whom bonds were issued; but only to the extent of the merits of their respective claims.

Without holding that the provisions of this judgment are erroneous in respect of the right of a purchaser at the mortgage sale to make payment in bonds, we think that the new judgment should more clearly express the plan adopted in order to avoid confusion in that respect. For example, if Mr. Vaughn should purchase the property for the sum of $284,000, he shall not pay that sum by delivering his 284 bonds. Those bonds would pay only the amount of his claim, say $43,862.10, with interest on-that sum. Doubtless this was the meaning of the judgment; but its language leaves this point in some confusion.

Many of the referee’s findings might stand, as supported by the evidence; but we think the wiser way will be to reverse this judgment wholly, and set aside this report wholly; and to refer the case Back to the referee with directions to treat the case before him as still open, and then proceed to take farther testimony, or listen to any motion which shall bear upon the honesty, fairness and justice of the claim of each bondholder, and then make a new report, so that the case may be presented de novo upon exceptions.

The costs and disbursements of this appeal should be allowed to defendants Buckley and Stanley, and the disbursements on this appeal of the plaintiffs should be allowed to them, payable out of the proceeds of the sale of the mortgaged premises.

Barnard, P. J., and Dykman, J., concur.


source: Caselaw Access Project

author: Bischoff, J.—The Pryor, J.—In

license: Public Domain

text:
    Eliza Jane Moore, App’lt, v. The New York Elevated Railroad Co. et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed June 5, 1893.)

    Railroad—Elevated—Damages.
    In an action against an elevated railroad to recover damages for alleged injury to the rental value of plaintiff's premises by the maintenance of the road, the plaintiff, on proof of an invasion of his easements, is entitled to nominal damages, although no excess of injury over benefits is shown.
    Appeal from a judgment for defendants which was entered upon a verdict in their favor.
    Action to recover damages for alleged injury to the rental value of plaintiff’s premises caused by the maintenance and operation of defendant’s elevated railway.

      Stanley W. Dexter, for app’lt; Brainard Tolles, for resp’ts.
   Bischoff, J.—The

action was by an abutting owner to recover damages for injury to the value of her premises caused by the maintenance and operation of defendants' elevated railway. The complaint alleged ownership of the premises and easements in the street and the answer denied it. On the trial plaintiff indisputably established title to and possession of the premises by evidence which remained unchallenged. The maintenance and operation of defendants’ elevated railway in front of the premises were conceded, and the case is destitute of all evidence from which defendants’ acquirement of the easements taken for the purposes of their elevated railway may be even remotely inferred. Thus it remained for plaintiff only to show the excess of injury to the rental value of her premises caused by defendants’ elevated railway in depriving them of their appurtenant easements of light, air and means of access over and above the benefits which were derived from the presence of the railway. If the evidence failed to show any excess of injury she was, notwithstanding, entitled to nominal damages.

“ For any invasion of property itself, or of a substantial right of property, nominal damages are recoverable, whether any actual damage results therefrom or not.” Wood’s Mayne on Damages, Am. ed., 7 note. “Every injury imports a damage, though it does not cost the party one farthing.” Lord Holt in Ashby v. White, Ld. Raym., 938. “When one encroaches on the inheritance of another, the law gives a right of action, and even if no damages are found the action will be sustained and nominal damages recovered ; because, unless that be done, the encroachment acquiesced in might ripen into a legal right, and the trespasser, by a continuance of his encroachment, acquire a legal title.” Hathorne v. Stinson, 12 Me., 183. The title to real property may be tried in an action for trespass, such as this was, and though the recovery be for nominal damages only, plaintiff’s claim of title is thereby sustained. Hence the rule that nominal damages must be awarded in such an action if the plaintiff’s title is established, though the act of trespass complained of “ occasions no other damage than putting at hazard rights which, if their encroachment were acquiesced in, would be lost by the lapse of time.” Bassett v. Salisbury Mfg. Co., 8 Fost., N. H., 438; Devendorf v. Wert, 42 Barb., 227; Thomas v. Brackney, 17 id., 654; Carhart v. Auburn Gas Light Co., 22 id., 297; Honsee v. Hammond, 39 id., 89; O'Riley v. McChesney, 3 Lans., 278.

“For every actionable injury there is an absolute right to damages, the law recognizes such an injury whenever a legal right is violated.” “ Every invasion of such a right threatens the right itself, and to some extent impairs the possessor’s enjoyment of it The logical sequence of finding an invasion is the legal sequence, a legal injury; this entitles the injured party to compensation.” “If there is no inquiry as to actual damages, or none appear on inquiry, the legal implication of damage remains.” “ The damages which the law thus infers from the infraction of a legal right are absolute; they cannot be controverted; they are the necessary consequent. The act complained of may produce no actual injury, it may be in fact beneficial, by adding to the value of the property or by averting a loss which would otherwise have happened, yet it will be equally true in law and in fact, that it was in itself injurious if violative of a legal right. The implied injury is from that circumstance; the fact that beyond violating a right it was not detrimental or was even advantageous is immaterial to the legal quality of the act itselfand the right to recover at least nominal damages “ applies to all actions, whether for tort or breach of contract, and whether the right is personal or relates to property.” Sutherland on Damages, 2d ed., vol. 1, §§ 9 and 10. It is a substantial right, and the maxim de minimis non curat lex does not apply thereto. § 11. Where a principle, or a right, or its extent is involved, an erroneous judgment for defendant should be reversed, although plaintiff may be entitled to nominal damages only, and the action is vexatious. Herrick v. Stover, 5 Wend., 580, 586; Hyatt v. Wood,, 3 Johns., 239 ; Dixon v. Clow, 24 Wend., 188; Searles v. Cronk, 38 How. Pr., 320.

Defendant’s denial of all knowledge or information sufficient to form a belief as to plaintiff's allegations of ownership of the easements interfered with by defendants’ elevated railway caused “ a claim of title to real property ” to arise upon the pleadings, within the meaning of subdivision 1, § 3228 of the Code of Civil Procedure, Bruen v. Manhattan Railway Co., N. Y. Com. Pl., Gen’l Term, June, 1891, 39 St. Rep., 86; Lynk v. Weaver, 128 N. Y., 171; 40 St. Rep., 349; and having sustained her claim of ownership on the trial, plaintiff was entitled to the recovery of costs. If nominal damages will entitle the party to whom they should have been awarded to costs, a judgment for the adverse party must be reversed. Eaton v. Lyman, 30 Wis., 41; Enos v. Cole, 53 id., 235; Sayles v. Bemis, 57 id., 315; Watson v. Hamilton, 6 Rich. (S. Car.), 75 ; Potter v. Mellen, 36 Minn., 122; Von Schoening v. Buchanan, 14 Abb., 185. In Cady v. Fairchild, 18 Johns., 129, which was an action for tresjiass, the county court, on appeal from a justice’s court, refused to grant a new trial, though it was conceded that the plaintiff in error was entitled to recover nominal damages, and this ruling was sustained, it appearing that “the object of the plaintiff in error is merely costs and to vex the defendant.” The case was criticised and declared to be opposed to principle in Stephens v. Wider, 32 N. Y., 351, in which the circumstances were the same, though followed as stare decisis. Its application should not, therefore, be extended.

It follows that the learned trial judge erred in refusing to charge as requested by plaintiff’s counsel, that the verdict must, in any event, be in favor of the plaintiff for nominal damages, and that the verdict for defendants is contrary to law and the evidence.

■ Judgment reversed and new trial ordered, with costs to appellant to abide the event

Hiegerich, J., concurs.

Pryor, J.—In

Sternberger v. Metropolitan, etc., R. R. Co., a case similar to the present, I directed the jury that, in any event, the plaintiffs were entitled to a verdict for nominal damages, and in Hoffman v. Manhattan E. R. Co., 48 St. Rep., 711, I stated obiter the same doctrine, citing Newman v. Metropolitan, 118 N. Y.,. 618 ; 30 St. Rep., 36, and Bohm v. Metropolitan, 129 N. Y., 576, 42 St. Rep., 247. Such was my conception of the law, and that I was in the right is shown by the above very satisfactory argument of Judge Bischoff.


author: Bischoff, J.

text:
    Elmira A. Fulton, Resp’t, v. The Metropolitan Life Insurance Co., App’lt.

      (New York Common Pleas, General Term,

      Filed June 5, 1893.)

    1. Insurance (life)—Premiums paid on void policy.
    Defendant issued to plaintiff a policy on the life of her father, but the consent of the latter was not procured, as required by defendant’s rules, but was signed by plaintiff. Learning of its invalidity plaintiff demanded back the premiums paid, when defendant’s secretary said the policy was void, but that on obtaining the father’s consent and a certificate of his health the company might waive the objection. Held, that plaintiff was ■not bound to procure such consent or certificate, and that both parties having treated the policy as void, neither could thereafter tevive it without the assent of the other, and that defendant could not defeat an action, to recover the premiums paid by a subsequent assumption of the validity of the policy.
    2. Same—Money had and received.
    In such a case an action for money had and received is the proper remedy and the use of the common count in assumpsit is a sufficient compliance with the requirement of the Code.
    Appeal from a judgment of the general term of the city court of New York, which affirmed a judgment for plaintiff at trial term entered upon a verdict in her favor.
    Action to recover in implied assumpsit for moneys had and received by defendant to plaintiff’s use; the moneys being paid defendant by plaintiff as premiums upon a policy of life insurance which was afterwards mutually abandoned and rescinded by the parties.

      Albert I. Sire, for resp’t; Wm. H. Arnoux, for app’lt.

       Affirming 50 St. Rep., 887.

   Bischoff, J.

The facts in evidence and conceded by defendant conclusively show that defendant’s policy of insurance which was issued to plaintiff upon the life of her father w'as rescinded by the parties by its mutual abandonment; and the trial judge might well, therefore, have directed a verdict in plaintiff’s favor.

It appeared that plaintiff had applied to defendant for a policy upon the life of her father, Jacob C. Stoner; that it was a condition precedent of defendant’s contract to insure that the consent, of the person whose life was proposed for insurance must have been personally subscribed by him on the application; and that this condition had not been complied with in the instance of plaintiff’s policy. Plaintiff testified that some time after the policy was issued to her, she called at the office of the defendant company and there met its secretary, to whom she stated that she understood the policy to be of no effect, and desired the premiums paid to be returned to her; and that the secretary replied that the policy was void, but that if she (plaintiff) would secure her father’s consent to the policy or a certificate from his physician respecting the state of her father’s health, the company might, on consideration of the matter, waive its objection to the validity of the policy. Mr. Gaston, defendant’s secretary and only witness on the trial, effectually corroborated plaintiff’s testimony.

Plaintiff was not bound to secure either the consent or the certificate required by defendant’s secretary. Mor did she do so, but instead brought this action for return of the premiums paid by her. Thus, both contracting parties treated the policy as void, and no longer subsisting between them ; and neither could thereafter revive it without the assent of the other. Much less can defendant defeat plaintiff’s action by its subsequent assumption of the validity of the policy. That being so, neither of defendant’s counsel’s requests to charge was relevant, and the exceptions taken to such as were refused do not for that reason present error. Priebe v. Kellogg Bridge Co., 77 N. Y., 597.

It is well settled in principle and by authority that where there has been a total failure of consideration, or where a contract has been abandoned, or has been rescinded, an action will lie for money had and received to recover back any money paid by either of the contracting parties to the other in furtherance of the contract. Wharton on Contracts, vol. 2, § 742; Raymond v. Bearnard, 12 Johns., 275 ; Chesapeake & Ohio Canal Co. v. Knapp, 9 Pet., 541, 566; book 9 L. C. P. Co., 222, 231; Lindsley v. Ferguson, 49 N. Y., 625; Am. & Eng. Enc. of Law, vol. 3, p. 889. So, also, it is settled by abundant authority and no longer open to debate that the use of the common count in assumjisit is a sufficient compliance with the requirement of the Code of Civil Procedure that the complaint must state the facts which constitute the cause of action. Allen v. Patterson, 7 N. Y., 476; Farron v. Sherwood, 17 id., 227, 229 ; Hosley v. Black, 28 id., 438; Hurst v. Litchfield, 39 id., 377; Am. Nat. Bk. v. Wheelock, 13 J. & S., 205; Evans v. Harris, 19 Barb., 416; Cudlipp v. Whipple, 4 Duer, 610 ; Bates v. Cobb, 5 Bosw., 29 ; Adams v. Holley, 12 How. 326: Betts v. Bache, 14 Abb. Pr., 279; Sloman v. Schmidt, 8 id., 5; Goelth v. White, 35 Barb., 76; Raymond v. Hanford, 6 N. Y. Sup. Ct. (T. & C.), 312; Fells v. Vestvali, 2 Keyes, 152; Pomeroy’s Remedies & Remedial Rights, § 542 ; 4 Wait’s Actions & Defenses, 246; 7 Lawson’s Rights, Remedies & Pr., p. 5438, and note 1, p. 5439 ; Boone’s Code Pl, § 171; Rumsey’s Pr., 246.

If the allegations of the complaint were inadequate to apprise defendant of the facts upon which recovery was sought, relief could have been had by a motion for a bill of particulars or to make the complaint more definite and certain.

Any omission of facts essential to plaintiff’s recovery in the opening statement of counsel, as well as any defect in the proof which existed when the introduction of plaintiff’s direct evidence was closed, was cured by evidence subsequently adduced by either party. Schenectady & Saratoga Plank Road, Co. v. Thatcher, 11 N. Y., 102, 112 ; Tiffany v. St. John, 65 id., 314; Painton v. North. Central R. R. Co., 83 id., 7.

Exceptions taken to rulings respecting the admission and exclusion of evidence are not urged on the brief of counsel for appellant. Nevertheless, they have been examined and found without merit.

The judgment of the general and trial terms of the court below should be affirmed, with costs.

Bookstaver and Pryor, JJ., concur.


author: Bookstaver, J.

text:
    Simon Levy, Resp’t, v. Caroline Ruff, App’lt.

      (New York Common Pleas, General Term.

      Filed June 5, 1893.)

    1. Brokers—Commissions.
    Plaintiff was employed by defendant to sell her property, and procured a purchaser, with whom she agreed upon the price and entered into an informal contract, which called for a formal contract to be executed. Such contract was not entered into, as defendant- insisted on having all cash for her equity, instead of a mortgage for part, as formerly agreed upon. Held, that plaintiff had performed his duty in bringing the parties together, and was entitled to his commissions.
    2. Same—Financial condition of purchaser.
    It is immaterial whether the purchaser, at the time of signing the contract, was "able to pay the entire purchase price or as to what banks he had his money in, s) long as he was able to make the payment due at that time, and testifies that he could have raised the balance by the time it was required.
    Appeal from a judgment of the city court on affirmance of a judgment entered in favor of plaintiff on a verdict of a jury at trial term.

      Fromme Brothers, for app’lt; David Leventritt, for resp’t.

       Affirming 51 St. Rep., 491.

   Bookstaver, J.

This action was brought by plaintiff to recover commissions as real estate broker in procuring a purchaser of certain property in Allen street for the defendant.

There is little conflict of testimony as to the facts. The employment of plaintiff by defendant is uncontradicted. It is also undisputed that while the original price named by the defendant for her premises was $28,000, and the original offer of Mr. Fine, the proposed purchaser, conceded to have been found by the plaintiff, was only $26,000, after some bargaining and negotiation Mr. Fine raised his offer to $27,000 and that this offer was accepted by the defendant, as she admits, and fifty dollars was immediately paid by Mr. Fine to defendant as a deposit, and that thereupon defendant executed a contract, drawn up by her daughter and witnessed by both the daughter and the broker, which although very inartificiallv drawn, we think, indicates with sufficient clearness the terms"of the sale. Pursuant to the terms of such informal agreement the parties met at the office of 0. Dexheimer, defendant’s lawyer, on December 28, 1891, and it is uncontradicted that on this occasion Mr. Fine was ready and willing to enter into a contract embodying the terms agreed upon in this informal contract, but that defendant, in pursuance of Mr. Dexheimer’s advice, refused to sign any contract for the sale of her property in accordance with that agreement. Mr. Dexheimer advised the defendant not to sign any contract unless she was paid her full equity in the property, notwithstanding the informal contract had provided for a second mortgage of $4,000 to be taken back by the seller. There were also some other differences at that time, but we think that the purchaser was in no fault, and was ready, willing and able to complete the contract according to the terms of the agreement between them and that plaintiff’s commissions were then and there earned."

When a broker employed to effect a sale has found a purchaser willing to take upon the terms named and of sufficient responsibility, he has performed his contract, and is entitled to the commissions agreed upon. Duclos v. Cunningham, 102 N. Y., 678; 2 St. Rep., 13. It was not necessary that a written contract of sale should have been entered into between the parties in order to entitle the plaintiff to his commission. It was sufficient if the plaintiff had found a proposed purchaser ready and willing to enter into such a contract. And even where there has been an oral agreement on the terms of a real estate bargain with the intention of reducing it to writing, but before the contract was so reduced the owner has receded from the agreement, it has been repeatedly held that he was, nevertheless, liable for brokers’ commissions. Barnard v. Monnot, 3 Keyes, 203; Krahner v. Heilman, 30 St. Rep., 434; Kalley v. Baher, 132 N. Y., 1; 42 St. Rep., 762; Gilder v. Davis, 51 St. Rep., 179; S. C., 137 N. Y., 506, advance sheets. In this case ■ there was not only an oral agreement, but that agreement had been reduced to writing, somewhat inartificially, it is true, yet with sufficient definiteness to witness the bringing of the minds of the parties together, and an agreement for the purchase and sale of the property and also its terms. The fact that the plaintiff subsequently met the defendant at Mr. Doll’s office, and endeavored to procure a new contract or another contract between the same parties or one substituted in the place of Mr. Fine, does not, in any way, affect the question at issue in this action. Therefore, the court did not err in its direction to the jury as to what took place at his office. Mor does the fact that the second endeavor fell through at all affect the plaintiff’s right to commissions. He had brought the minds of the parties to meet on the terms embraced in the informal agreement, and conceding that the parties subsequently agreed to modify those terms by requiring all cash; and defendant admits it was not until after the meeting at Mr. Dexheimer’s office that this was insisted upon ; and conceding that it then appeared that the purchaser was unable to fulfill these new conditions, it in no way affected the plaintiff’s rights. At the utmost all that could be required of the broker was that the purchaser should be ready and willing to enter into a contract on the terms of the informal contract, and it does not appear that at Mr. Doll’s office the purchasers were unwilling or unable to do that.

After Mr. Fine, the purchaser, had testified that at Mr. Dexheimer’s office he was ready and willing to carry out the contract, and had the $450 there to complete the $500 agreed upon as a deposit, he was cross-examined as to his ability to pay $15,000 in cash then and at that time, and finally, when the witness explained that his contract required only $11,000 to be paid in cash, but only $500 on that occasion, he was asked whether he had $10,500, which question was excluded. It was plainly immaterial whether he had or not. It was not required, on that occasion. The witness testified that he could have raised it and would have been able to pay it at the time when it was required, which was ninety days off. Of course the question as to what banks he had his money in was even less admissible, because it would have made no difference whether or not he had any money on deposit in any bank at that time ; he had the $450 which was required of him at that time, and the testimony is clear that he was of sufficient responsibility to have raised the amount necessary when the ninety days had expired.

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

Bischoff and Pryor, JJ., concur.


text:
    Denis P. McCarthy, Resp’t, v. Patrick Gallagher, App’lt.

      (New York Common Pleas, General Term,

      Filed June 5, 1893.)

    1. Appeal—Case.
    A statement in a case on appeal that it contains all the testimony taken on the trial is not equivalent to a statement that it contains all the evidence taken on the trial, and the facts are not, under such a statement, brought before the court for review.
    2. Contract—Satisfaction.
    Where work is to be done to the satisfaction of a person, the satisfaction contemplated must be a reasonable one, and not a mere whim.
    3. Mechanic’s lien—Evidence.
    In an action to foreclose a mechanic’s lien, an expert witness testified that he went with plaintiff, after the lien was filed, to examine the character and quality of the work and materials, and that he made an effort to examine the inside of the premises. Held, that testimony as to the reason why he did not examine it was relevant and material, as showing the good faith of plaintiff and the motives actuating defendant in his defense.
    4. Same.
    Defendant testified that plaintiff delayed the work and, in consequence, he had lost rent. Held, that in the abseuce of proof that there were applicants for the house, or that in consequence of non-completion applicants had been refused or could not take possession, it was not error to reject a question as to how much he had lost.
    Appeal from a judgment of the general term of the city court, affirming a judgment entered on the direction of a verdict at trial term.

      H. A. Brann, for app’lt; Bdward W. S. Johnston, for resp’t.

       Affirming 51 St. Rep., 144.

   Bookstaver, J.

This action was brought to foreclose a mechanic’s lien for a balance due under a building contract and for extra work, and resulted in a judgment in favor of the plaintiff, respondent. There is no statement in the appeal book that the case contains all the evidence taken on the trial, but, instead of that, there appears the following: “ The foregoing case on appeal contains all the testimony taken on the trial of this action.” It has been repeatedly decided of late that the latter of these statements is not the equivalent of the former, and that under such a statement the facts are not brought before the court, even at general term, for review. Hyman v. Friedman, 45 St. Rep., 636 ; Aldridge v. Aldridge, 120 N. Y., 614; 31 St. Rep., 948; Upington v. Pooler, 47 id., 34; Halpin v. P. Ins. Co., 118 N. Y., 166; 28 St. Rep., 788; Brayton v. Sherman, id., 854; Porter v. Smith, 107 N. Y., 531; 12 St. Rep., 479; Claflin v. Flack, 36 id., 728. And it is, therefore, unnecessary to go over this ground again. But it may be proper to remark that the case under consideration is an ample justification of the rule established, for it appears from the return that exhibits Nos. 1. 4, 8, 12 and 14 were introduced in evidence but are not printed in the appeal book. Notwithstanding this omission the court below did review all the ■questions of fact involved in the case and found there was “ ample evidence to sustain his (the court’s) findings,” among which was the finding that the plaintiff had duly performed for the defendant the work, and furnished the materials provided for in the contract, in all respects on his part. This disposes of the appellant’s contention that the plaintiff was bound to show performance on his part before he could recover in the action.- The contention that he was bound to do it to the satisfaction of the defendant cannot be sustained in view of the findings of facts in this case. Besides, it may be remarked, that the satisfaction contemplated by law must be a reasonable one, and not a mere whim, as it appears to have been in this case.

The only questions left for review, therefore, are those arising on the exceptions taken, and they are but two or three in number. A witness, an expert paper hanger, having testified he went in company with the plaintiff, after the filing of his lien, to the premises in question in order to examine the character and quality of the work done and the materials furnished pursuant to the contract, testified that he made an effort to examine the inside, and was then asked the question for what reason he did not examine it (the inside); this was objected to as irrelevant and immaterial; the objection was overruled and exception taken. This objection in no manner pointed out an error, if any, in the question. The testimony was, in our judgment, both relevant and material as, showing the good faith of the plaintiff and the motives actuating the defendant in his defense. But even if the question were irrelevant, it could by no possibility have injured the defendant, and as this was in effect an action in equity, the judgment would not be reversed merely because irrelevant matter was admitted.

The defendant had testified that he had frequently called the plaintiff’s attention to the fact that he was delaying the work, and in consequence of that claimed that he had lost rent. He was then asked the question “ How much ?” This was objected to on behalf of the plaintiff as incompetent, irrelevant and immaterial, and it to us that an answer to that would have been a mem conclusion of the witness, as no proper basis had been laid for it, and the defendant had not attempted to precede it or follow it up by laying the proper basis therefor. It is not in the nature of expert testimony, which would have been incompetent in our judgment. It had not been shown that there were any applicants for rooms in the house, or that by reason of their not being completed applicants had been refused or could not take possession, or that rent had been lost in consequence. This precise question was considered by the general term of the city court in the case of Conover v. Lennon, 46 St. Rep., 18, which was affirmed by this court. ' See, also, Scribner v. Jacobs, 31 St. Rep., 795-6.

No other exceptions were argued upon the appeal, and we think the judgment should be affirmed, with costs.

Bischoff and Pryor, JJ., concur.


text:
    Charles G. S. Reed, Resp’t, v. Henry C. Zimmerman, App’lt.

      (New York Common Pleas, General Term,

      Filed June 5, 1893.)

      1. Appeal—Common pleas—Conflict of evidence.
    Where the record on appeal from the city court shows no evidence bearing on the dispute other than the conflicting testimony of the parties, there is nothing which the common pleas can review, as it is precluded from consideration of the weight of evidence by the judgment of the general term below.
    2. Evidence—Memoranda.
    A refusal by the referee to direct the production for inspection of a memoranda from which plaintiff read while testifying i£ not reversible error, where such memoranda was afterward produced and inspected and plaintiff cross-examined respecting its contents.
    Appeal from a judgment of the general term of the city court of New York, which affirmed a judgment entered upon a referee’s report.
    Action to recover a balance due upon an account for money lent.

      Millard C. Ernsberger, for resp't: Denis McMahon, for app’lt.

       Affirming 48 St. Rep., 687.

   Bischoff, J.

On the trial the controversy between the parties to this action was reduced substantially to the question whether or not defendant was entitled to be credited with the amounts of three several checks, $135, $140, and $159.75, and cash §100.05, aggregating $534.80. in payment on account of his indebtedness to plaintiff. Defendant maintained that these several items were by him applied in payment of the indebtedness,while plaintiff contended that they had reference to matters not connected with the subject matter of the action. On defendant rested the burden of proving his defense of payment, and no evidence appears in the record bearing upon the dispute other than the conflicting testimony of the parties, respectively. In such a case there is nothing which we may review, as we are precluded from consideration of the weight of the evidence by the judgment of the general term of the court below. Arnsiein v. Haulenbeek, 16 Daly, 382; 34 St. Rep.; 297; Third Natl. Bk. v. Cornes, 1 Silvernail (Ct. App.), 167; 2 St. Rep., 543.

Defendant’s exceptions concerning the memoranda from which plaintiff read while testifying were confined to the referee’s refusal to direct the production of the memoranda for inspection by defendant’s counsel. The record, however, shows that the memoranda were produced and inspected by defendant’s counsel after the referee’s ruling was had,and that plaintiff was cross-examined respecting their contents. Under the circumstances the error of the referee’s refusal, assuming it to have been such, was harmless, and the exceptions, therefore, afford no ground for reversal. City Bk. of B'klyn v. Dearborn, 20 N. Y., 244; Phillips v. Richardson, N. Y. Com. Pl., 35 St Rep., 377. Furthermore, the error was waived. Crosby v. Day, 81 N. Y., 242; Neill v. Thorn, 88 id., 270, 277.

The judgment should be affirmed, with costs.

Bookstaveb and Pryor, JJ., concur.


author: Van Wyck, J.

text:
    Harlan P. Smith, App’lt, v. Peter Wagner, Resp’t.

      (City Court of New York, General Term,

      Filed June 19, 1893.)

    Nonsuit—Use and occupation.
    In an action for use and occupation of premises for the months of March and April, the answer specifically alleged that defendant used and occupied the premises for the month of April at the rent stated, which was not paid. Held, that plaintiff was entitled to a direction in his favor for the rent of that month, and that a non-suit was improperly granted.
    Appeal by plaintiff from judgment of non-suit.

      S. V. R. Cooper, for app’lt; Wm. Allen, for resp’t.
   Van Wyck, J.

The action is for unpaid rent for the use and occupation by defendant of plaintiff’s premises. The unpaid rent sued for is seventy-five dollars for each of the months of March and April, 1892. The defendant by his answer specifically alleges 11 that under an agreement made between defendant and plaintiff, the defendant used and occupied said premises for the month of November, 1891, at the rent of seventy-five dollars per month, which was paid,” and for the month of April, 1892, at the same rent, which was not paid. Thus it appears that plaintiff was entitled to a directiou in his favor for seventy-five dollars for the use and occupation of his premises by defendant for the month of April, 1892; hence he should not have been non-suited.

The judgment of non-suit should be reversed for this reason alone, however there are others the discussion of which are not now necessary. Judgment reversed and new trial granted, with costs to appellant to abide the event.

McGtOWN, J., concurs.


author: Vah Wyck, J.

text:
    The Jacob Hoffman Brewing Co., App’lt, v. Louis Volpe et al., Resp’ts.

      (City Court of New York, General Term,

      Filed June 19, 1893.)

    Costs—Inquest—Two trial eees.
    In this action an inquest was taken, which was afterwards opened and a trial had, resulting in a verdict and judgment for plaintiff. The record showed that the inquest was “ duly taken,” the first judgment “ duly entered,” that the default was opened and final trial had atwhioh'the verdict for plaintiff was returned, and the final judgment, and nothing more. Held, that upon this record, the clerk properly taxed two trial fees.
    Appeal from order reversing taxation of two trial fees by the clerk.

      Campbell & Murphy, for app’lt; Wm. E. Morris, for resp’t.
   Vah Wyck, J.

It appears that on November 16 an inquest was taken which was thereafter opened, and the cause finally tiled on April 19, resulting in the verdict for plaintiff, upon which the judgment was entered after taxation of costs on notice. Upon this taxation the clerk allowed thirty dollars as trial fee for the inquest, and thirty dollars trial fee of the final trial, and from which defendant appealed to special term, where the clerk’s taxation of the first trial fee was reversed, and it is from such reversal that this appeal is taken. This order of reversal recites that the inquest was “ duly taken,” and the first judgment “ duly entered,” and that thereafter the defendants’ default was opened, and the final trial had at which was returned for plaintiff the verdict upon which the second and final judgment was entered. There is no other or further proof in the record as regards the inquest, the first judgment, the opening of defendants’ default, the final trial, or the second judgment. Upon the record on appeal the clerk’s taxation of two trial fees of thirty dollars each was correct, and should not have been reversed, for it has been repeatedly held that an inquest is such a trial as entitled plaintiff to a trial fee of thirty dollars. Wessels v. Carr, 22 Abb. N. C., 464.

The order appealed from is reversed, with ten dollars costs and disbursements.

McG-owh and Fitzsimons, JJ., concur.


text:
    Charles W. Adams, Resp’t, v. Granville S. P. Stillman, App’lt.

      (City Court of New York, General Term,

      Filed June 19, 1893.)

    Counterclaim—Judgment eor costs—Attorneys.
    The attorney of record for the successful party becomes, by force of law, the owner of a judgment for costs only recovered in the action, and may counterclaim it in action on contract brought against him by the judgment debtor.
    Appeal by plaintiff from judgment entered on a verdict returned against him.

      I. N. Williams, for resp’t; G. S. P. Stillman, for app’lt.
   Vah Wyck, J.

Plaintiff sues two of defendant’s notes, payable to the order of plaintiff’s copartnership firm, and by such firm transferred to him. The defendant sets up, by way of counterclaim, recovery of a judgment against this plaintiff for this defendant’s costs only in another action, in which this plaintiff was the plaintiff therein, against one Roberts, as defendant therein, and in which Stillman, the defendant herein, was the attorney of record for Roberts and prosecuted that action to successful determination by obtaining such judgment against plaintiff for this defendant’s costs only. The plaintiff does not deny any of the allegations of this counterclaim and testifies that “ he was beaten in that action of his (against Roberts), and the judgment for costs was entered up against him and that he has not paid it.’’ The ruling below was that this was not a good counterclaim and to which defendant excepted. This judgment being for costs only, the attorney of record for the party successful therein became, by force of law, the owner of such judgment, and as it was against this plaintiff, it is a good counterclaim in this action against such attorney. The judgment being for costs only, the attorney is to be regarded as the equitable assignee thereof, and the record is, in itself, legal notice of the lien,” which cannot be discharged by payment to any one but the attorney. Marshall v. Meech, 51 N. Y., 143.

Hence its allowance as a counterclaim herein cannot subject this plaintiff to liability to the defendant in- the other action, for such defendant has no claim to or interest in the same, nor could he assign or satisfy it without the consent of the attorney. Under § 449 of the Code, the action must be prosecuted in the name of the real party in interest, whether he be a legal or equitable assignee of the cause of action. Hence, if it should become necessary to bring an action upon a judgment for costs only, the same should be commenced in the name of the attorney of record, to whom the costs and judgment for same belongs. Kipp v. Rapp, 7 Civ. Pro., 385. íf the attorney can maintain an action upon such judgment, a contract of the highest order, he can certainly counterclaim upon the same in action on contract.

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

McG-own, J., concurs.


author: Peckham, J.

text:
    The Sixth Avenue Railroad Company, Resp’t, v. The Metropolitan Elevated Railway Company et al., App’lts.

      (Court of Appeals,

      Filed June 20, 1893.)

    1. Railboads—Elevated—Damage to bee.
    Although it is error for the court to refuse to find the fact that the value of the easements taken by the defendants when considered alone was nominal, or that the damage, if any, sustained by the plaintiff was only consequential, yet where the record shows beyond any fair doubt that the true rule of damages was adopted by the court, and that in arriving at the amount of the award to be paid it took into consideration the benefits, if any, arising to the land because of the railroad, and gave judgment accordingly, such judgment will not be reversed because of such erroneous refusal to find.
    2. Same.
    UTo compensation or damage can be awarded for vibration or noise caused by th'e railroad.

      3. Same.
    The amount oí damage sustained by the abutting owner, or the possible value of property, if the railroad were not there, is not the subject of expert evidence.
    4. Same.
    Where the proper rule of damages was followed bythe court, the refusal by it to state, as a conclusion of law, that in order to recover beyond a nominal sum for the taking of the easements, the plaintiff must establish, by a preponderance of proof, that it has suffered consequential damages from the taking of the easements by defendants, is not error for which a new trial should be granted.
    Appeal from, judgment of the supreme court, general term, first department, affirming judgment of special term in favor of plaintiff.

      Edward C. James, for app’lts; George Zabriskie, for resp’t.

         Affirming 46 St. Rep., 964.

   Peckham, J.

The questions in this case relate to the damages to the fee of the property owned by the plaintiff herein.

The court refused to find the fact that the value of the easements taken by the defendants when considered alone was nominal only, or that the damage, if any, sustained by the plaintiff, was only consequential. In the abstract this was error, and we have so held. Whenever it has appeared that the court in awarding damages was guided by an erroneous rule founded upon such refusals, we have always reversed. And if the record left the matter in doubt and erroneous findings or conclusions of law appeared therein, we have also always reversed the judgment. We have done so because when an erroneous ruling was made which might be material, we would reverse unless it appeared that no injury came to the defendant by reason of the erroneous finding or refusal to find.

We intend to adhere strictly to the, rule for the award of damages adopted in the Newman and in the Bohm cases, 118 N. Y., 618 ; 30 St. Rep., 36, and 129 N. Y., 576 ; 42 St. Rep., 247.

But when the record shows that the error in the finding as to the value of the easements or as to the nature of the damages sustained was only of an abstract nature, or in other words, that it consisted of a merely erroneous description of the injury sustained, and it also appears that the correct rule for the ascertainment of damages was in reality adopted, it would be unjust to reverse a judgment on any such fanciful ground. In this case, notwithstanding the abstract error in refusing to find as a fact that the value of the easements taken was only nominal when considered alone, and that the damages to be recovered, if any, were consequential only, the record shows beyond any fair doubt that the true rule of damages was adopted by the court. When the trial court speaks of the value of the easements or the property taken by the defendant, it is evident from the conclusions of law found by the learned judge that this language was used to express the idea of damages sustained by the appurtenant land on account of the taking of these easements after a consideration of all the advantages, if any, arising from the presence of the railroad in the avenue.

The court had the decision in the Newman case before it at the time it made the findings in this case, and there is no evidence that the learned trial judge had the least reluctance to follow that decision in its essential and material features. Whether he called the easements of nominal value only, or refused so to designate them, is not of the least consequence, so long as the case shows that in arriving at the amount of the award to be paid the learned judge took into consideration the benefits, if any, arising to the land because of the railroad' and gave judgment accordingly. This the court did in the case before us.

Second. As to the exception to the evidence of noise and vibration caused by the railroad, if the fact had been taken into consideration in fixing the amount of damages to the fee it would, of course, have been error. It is, however, clear from the decision that the compensation awarded was only for the injury to the easements of light, air and access.

It is these easements only which are taken by the railroad, and it is only for the injury consequent upon their taking that a recovery can be had. A careful perusal of the decision convinces us that no compensation or damage was awarded for vibration or noise.

Third. We do not think that any error for which this judgment should be reversed occurred in the various rulings of the court upon the matters of expert evidence. The expert evidence which has been condemned has been that which related to the very fact in issue, viz.: the amount of damages which the party has sustained. It has been held improper to show by the expert his opinion of what would have been the value of the property if the railroad had not been built. That, of course, is pure conjecture or speculation. All the facts necessary to enable anyone to guess upon that proposition can be stated by the expert. All the facts upon which he is enabled to make up his own opinion might probably be stated for the information of the court or jury, but the express fact to be decided by the tribunal itself, viz., the amount of damage sustained by the plaintiff or the possible value of property if the railroad were not there, is not the subject of expert opinion. Roberts case, 128 N. Y., 455; 40 St. Rep., 454; Doyle's case, 128 N. Y., 488; 40 St. Rep., 474; Gray's ease, 128 N. Y., 499; 40 St. Rep., 478. The questions put to the witnesses Waterlow and Harnett were not of that character. The objections to their evidence are such as a cross-examination would obviate, which would bring out the grounds upon which the witnesses based their opinions as to the alleged existing values of property and as to the course of rentals.

Fourth. The refusal of the court to state as a conclusion of law that in order to recover beyond a nominal sum for the taking of the easements the plaintiff must establish by a preponderance of proof that it has suffered consequential damages from the taking of the easements by defendants, was not error for which a new trial should be granted. It is, as has already been stated, apparent from the whole record that a proper rule of damages was followed by the court, and the refusal of this request to call them consequential damages was but a reiteration of the views on that part of the case already given by the court. That it was necessary for the plaintiff to prove its case by a preponderance of evidence is not a matter of doubt, and the trial court nowhere held the contrary.

Fifth. The limitation of the number of experts who should be called was matter of fair discretion with the trial court, and there is not the slightest trace in '-his record of any abuse of that discretion.

After a careful consideration of all the questions in the case we think the judgment should be affirmed, with -costs.

All concur.


author: Earl, J.

text:
    The People ex rel. The Edison Electric Light Co., App’lt, v. Frank Campbell, Comptroller, Resp’t.

      (Court of Appeals,

      Filed June 20, 1893.)

    1. Taxes—Coeporations—Investment oe capital.
    The entire capital of relator was originally invested in patent rights, and in selling rights to corporations relator received stocks of such corporations, and collected the dividends thereon. Held, that so much of relator’s capital, to wit, its patents, as was used to purchase stocks of corporations organized and existing in this state, was taxable in this state, but so much as was used to purchase stocks in companies organized outside of this state was not taxable here.
    2. Same.
    Bonds of foreign corporations issued to relator in payment for patent • rights granted are taxable in this state.
    3. Same—Patents.
    Relator had granted to various corporations, within and without the state, rights to use its patents, but retained its patents for use in territory not covered by the grants made. Held, that the patent rights not granted were employed at the home office in this state, and were taxable here.
    Appeal from judgment of the supreme court, general term, third department, affirming determination of comptroller declining to set aside taxes assessed against relator.

      S. B. Lewis, for app’lt; S. W. Rosendale, att’y-gen., for resp’t.

       Reversing 51 St. Rep., 939.

   Earl, J.

The capital of $1,500,000. The comptroller, under the act chapter 542 of the Laws of 1880, and the acts amendatory thereof and supplementary thereto, determined that its entire capital, in the year 1891, was employed in this state, and estimated its value at $3,000,000, and upon that sum imposed the tax authorized by the act. The relator does not complain that the value placed upon its capital was too high. But it claims that none of it was employed within the state, and hence, that none of it was taxable under the act, and whether this claim, as to the entire capital or any portion of it, is well founded, is the sole matter for our determination.

The tax could be imposed only as to so much of the capital as was “ employed within this state,” and the comptroller claimed that the whole of it was so employed. We think he was mistaken.

It is sufficiently accurate for the purpose now in hand to say that the entire capital of the relator was originally invested in patent rights. Corporations were formed in various cities of this state, and, to a large extent, in cities outside of this state, to use these patents, and to these corporations the relator granted the right to use the patents; and in compensation for such grants it received stocks of such corporations, and, during the year 1891, it held such stocks and received the dividends declared thereon.

As to so much of such stocks as was in corporations organized and existing in this state, it cannot be doubted that its capital was employed within this state. So much of its capital, to wit, its patents, as was used to purchase such stocks, was employed for that purpose, and was thus used for the business of the relator. The stocks existed within this state and were kept and held to produce revenue here, and hence in every sense were employed within this state. They took the place as a portion of the relator’s capital of the patent rights transferred in payment for them.

The stocks which the relator took in companies organized outside of this state stood for so much of the relator’s capital invested outside of the state. It took a portion of its capital,to wit, a portion of its patent rights, and employed it outside of the state to purchase those stocks. Its property in those corporations, represented by its shares of stock, was outside of this state,and -was in no sense employed here. Those stocks had no situs here and were not taxable here under any system of taxation which has ever existed in this state. People ex rel. Pacific Mail Steamship Co. v. Comrs. of Taxes, etc., of New York, 5 Hun, 200; S. C., 64 N. Y., 541; People ex rel. Trowbridge v. Commissioners of Taxes, etc., of New York, 4 Hun, 595; S. C., 62 N. Y., 630; People ex rel. Seth Thomas Clock Co. v. Wemple, Comptroller, 133 id., 323 ; 45 St. Rep., 234; People ex rel. American Contracting & Dredging Company v. Same, 129 N. Y., 558 ; 42 St. Rep., 400. It is quite true that so much of the relator’s capital as was invested in these stocks was not employed in business outside of this state. But that was not requisite to entitle it to the exemption. To subject it to taxation it must have been employed within this state, and that it was not so employed we think we have sufficiently shown. The case of People v. American Bell Telephone Co., 117 N. Y., 241; 27 St. Rep., 459, is not an authority for the comptroller in this case. In that case the defendant, a foreign corporation, held stocks in various companies in this state, and it was held that it could not be taxed under the act of 1880 on account of the investment of a portion of its capital in such companies, for the reason that it was not doing business in this state. Before a foreign corporation can be taxed under that act in this state it must not only employ a portion of its capital in this state, but it must also be engaged in business here. People ex rel. American Contracting & Dredging Co. v. Wemple, supra. As to a domestic corporation it is sufficient to subject its capital to taxation under the act that it was employed within the state,and it is employed where it is kept and used for the purposes of the corporation.

It is said in this record, although not distinctly shown, that the relator also held bonds of foreign corporations, issued to it in payment for patent rights granted. We think that so much of the -capital as was invested in such bonds was taxable here under the act. Those bonds were presumably held at its office in this state, and such bonds, as well as all choses in action, unless kept employed or used outside of the state, have their situs at the domicil of the owner. The bonds took the place of the patent rights granted for their purchase. They were kept and held here to earn revenue for the relator, and they were, in a proper sense, employed here for that purpose.

The relator had granted to various corporations, within and without the state, rights to use its patents, and thus far it had -disposed of its patents. But it retained its patents for use in territory not covered by the grants made, and the remaining question is, where were the patent rights not granted employed? We think they were employed at the home office in this state. The main business of the relator was to perfect and protect its patents, and to grant patent rights, and to do whatever was needful and incident to that business, and that business was managed at and conducted from the home office, and its patents were kept and employed there in that business. A patent is an incorporeal right, a franchise, conferred by the sovereign power upon the patentee. It is personal to him, and until he is divested of the title thereto, like other personal rights, it attends his person, and exists where he is or where he puts it to use. We are, therefore, of opinion that the comptroller did not err in including in the capital of the relator, to be estimated for taxation, its patents, so far as they had not been disposed of. ■

It follows from these views that the order of the general term should be reversed, and that the determination of the comptroller should be reversed so far as it included for the purposes of taxation the stocks held by the relator in foreign corporations, and that the matter should be remitted to the comptroller to the end that he may readjust the tax-upon the relator’s capital in accordance with the views expressed in this opinion, without costs to either party in any of the courts.

Judgment accordingly.

All concur, except Maynard, J., taking no part.


text:
    Henry Steubing, Resp’t, v. The New York Elevated Railroad Company et al., App’lts.

      (Court of Appeals,

      Filed June 20, 1893.)

    1. Railiioads—Elevated—Damages.
    The referee in an action for damages caused by the erection of an elevated railroad refused to find that the easements appurtenant to the land described and taken for the railway have in themselves only a nominal value. He found as facts that plaintiff had sustained damages in'loss of rentals during the six years prior to the bringing of the action in the sum of $3,160, and also that the permanent or fee value of each of the two buildings in question had been diminished by the construction and maintenance of said railroad to tlie extent of §2,600. He awarded for one rental damages §2,160, and fee damages $2,600 and for the other no rental damage, and fee damages $2,600. Held, that the findings show that no allowance was made for the easements as detached property, but that the entire amount for the fee damages was for consequential damages to the lots, and that the proper rule of law was applied.
    2. Same.
    The referee refused to find that “ the presence of defendants’ railway and station at Fifty-third street brings a large number of persons daily into Third avenue, in the immediate neighborhood of the premises in suit, and increases the traffic in and-upon said avenue at this point, tiaid premises would not be worth as mucn as they are now had the said railway station not been built.” Held, no error, on account of the last clause, as there was abundant evidence that the value of the premises was not increased on account of the construction and maintenance of the elevated railroad.

      3. Same—Practice.
    Defendants made forty-seven requests to find facts and twenty-four to find conclusions of law, and requested the referee if he refused to find the facts as requested, to find the same matters as conclusions of law, and if he refused to find the law as requested to find the same matters as facts. They also stated that “ each sentence of each proposed finding is prepared separately as if separately numbered.” Held, that this is a practice not to be tolerated; that proper practice requires that a request to find either facts or law should be plainly stated in a single proposition, the whole of which can be granted or refused, and any modification of the requested finding should be left to the discretion of the trial judge.

      4. Same.
    The referee refused to find as requested by defendants that “the effects of the proximity of defendants' station at Third avenue and Fifty-third street to the premises in suit is advantageous to the business portion of said premises, and produces a special benefit to the same for business uses.” Held, no error; that the effect of the proximity of the station to the plaintiff’s lots was not the subject of inquiry and no harm was committed in refusing the request.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment for plaintiff entered upon report of referee.

      Arthur O. Townsend, for app’lts; Henry G. Atwater, for resp’t.

       Affirming 46 St. Rep., 799.

   Earl, J.

The complaint in this action, which is in the usual form for such actions by abutting owners against the elevated railroad companies, relates to two lots, numbers 900 and 902, on Third avenue. The referee awarded for number 900 rental damages $2,160, and fee damages $2,600; and for lot 902 no • rental damage, and fee damages $2,600. The defendants’sole complaint now is that the referee erroneously refused to make certain findings of fact and law requested by their counsel, and the following requests to find facts are specified :

Fifteenth. The easements, if any, appurtenant to the land described in the complaint, and taken for the said railway uses, aside from any damage to said land from the said taking, have in themselves only a nominal value.”
“ Thirty-first. The presence of defendants’ railway and station, at Fifty-third street, brings a large number of persons daily into Third avenue in the immediate neighborhood of the premises in suit, and increases the traffic in and upon said avenue at this point. Said premises would not be worth as much as they are now had the said railway station not been built.”
“ Thirty-second. The existence of said station and railway, and the maintenance and operation of the same, have rendered the premises in suit accessible to other parts of the city of New York. Said premises would not be worth as much as they now are were said railway and station removed.”'
“Thirty-third..The effects of the proximity of defendants’station at Third avenue and Fifty-third street to the premises in suit is advantageous to the business portion of said premises,' and produces a special benefit to the same for business uses.”
“ Thirty-fourth. The special benefits accruing to the business portion of said premises from said railroad station are equal to-an d offset any disadvantage to the dwelling apartments in said premises accruing from the maintenance and operation of said, railroad.”

And our attention is called to the refusals of the following findings of law requested :

Tenth. The damages, if any, to the use of the premises included in any recovery in this action should be computed with respect to the actual condition of said premises, and the uses to which the same have actually been put during the period for which said damages, if any, are awarded.”
Eleventh. In estimating damages, if any herein, the benefits, accruing to said premises, and peculiar thereto, from the maintenance and operation of said railway, should be set off against, any inconveniences resulting from said railway to said premises.” Fifteenth. The defendants should not be required to pay for the easements in question, as a condition of avoiding the operation of any injunction herein, any greater sum than one sufficient to compensate plaintiff for the injuries caused by the perpetual taking of the easements aforesaid for the maintenance of defendants’' railway, as at present maintained.”
Sixteenth. The sum fixed which the defendants may pay to obviate the injunction herein should not be greater than the value of so much of the easements of light, air and access appurtenant to plaintiff’s premises as are impaired by the defendants’ railroad ; and excluding all other incidental injuries to the fee value of said premises resulting from the acts of the defendants.”
The fifteenth finding of fact requested should have been found,, as we have held in several recent cases. Butin order, to determine whether any prejudicial error was committed by the refusal to make the finding we must examine and consider all the findings of facts, among which are the following :
Thirty-first. By reason of the construction, maintenance and operation of the said railroad opposite to the said described premises, No. 900 Third avenue, the plaintiff has sustained damages in loss of rentals from the 6th day of June, 1884, to the 6th day of June, 1890, the date of the commencement of this action, in the sum of $2,160."
Thirty-second. The permanent or fee value of the said premises,, No. 900 Third avenue, has been diminished by the construction and maintenance of said railroad opposite to the said premises to the extent of $2,600.”
“ Thirty third. The permanent or fee value o f the said described premises, No. 902 Third avenue, has been diminished by the construction and maintenance of said railroad opposite to the said premises to the extent of $2,600.”

These findings show that no allowance was made for the easements as detached property, but that the entire amount for the fee damages was for consequential damages to the lots, and the proper rule of law appears to have been applied.

The thirty-first finding of fact was properly refused, if for no -other reason, on account of the last clause contained therein, to wit, “ said premises would not be worth as much as they are now had the railway station not been built.” The referee could properly refuse to" find this, as there was abundant evidence that the value of the premises was not increased on account of the construction and maintenance of the elevated railroad. It may be that the railroad being there the existence of the station lessened the damage to the plaintiff’s premises. But the effect of the station was merely one of the facts to be considered by the referee in making his determination as to the damages. It was not vital or controlling; it was mere evidence as to which he was not hound to make a finding. It does not appear that he did not give due weight to the proximity of the station.

A practice seems to have grown up in this class of cases which?' must be somewhat embarrassing to the trial courts. The defendants made forty-seven requests to find facts and twenty-four to find conclusions of law, and requested the referee, if he refused to find the facts as requested, to find the same matters as conclusions of law, and if he refused to find the law as requested, to find the same matters as facts. This is not all. They stated that “ each sentence of each proposed finding is prepared separately as if separately numbered.” This is a practice not to be tolerated. The large number of requests are generally quite embarrassing" to the court. But when the same matter is requested to be found both as facts and law, it duplicates all the specific findings requested, and the number is still largely increased when every sentence is also requested to be found both as fact and law. Such a practice is not needful for the protection of the rights of any party, and the tendency must be to ensnare the trial judge and frequently to defeat the ends of justice by introducing mistakes, ■confusion and uncertainty into the records of cases brought up for review. Proper practice requires that a request to find either facts or law should be plainly stated in a single proposition, the whole of which can be granted or refused, and any modification of the requested finding should be left to the discretion of the trial judge. But as to the thirty-first finding of fact requested the referee refused it as a whole, and the defendants excepted to the refusal as a whole, and hence they cannot complain of error unless the entire request as a whole was proper; and that it was not we think has been shown.

The thirty-second finding of fact requested was properly refused. The first sentence thereof is a mere statement of evidence not disputed or disputable, which the referee was not bound to find, and the last sentence does not rest upon undisputed evidence-Therefore, the referee for reasons above given was not bound to make the finding.

As to the thirty-third request, it may be said that the effect of the proximity of the station to the plaintiff’s lots was not the subject of inquiry. The matter to be determined was the effect upon the plaintiff’s lots of the construction and maintenance of the railroad in front of the lots, and in determining that the referee was bound to take into consideration the proximity of the station, and all the other facts bearing upon the matter. It cannot be perceived that any harmful error was committed in refusing this request.

The thirty-fourth request was not founded upon undisputed evidence, and the referee could properly upon the evidence refuse it.

As to the tenth, eleventh, fifteenth and sixteenth requests for findings of law, it is sufficient to say that it is obvious from the findings actually made that the law was applied as requested, and that the damages awarded appear to have been estimated upon the proper basis.

There is considerable difficulty attending the trial of this class of cases, and a judgment should not be reversed if upon the whole record we can see that no harmful error was committed, and that the proper principles of law were not misapprehended or misapplied. , .

The judgment should be affirmed, with costs.

All concur.


text:
    David S. Paige, App’lt, v. Nathan A. Chedsey et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed June 5, 1893.)

    1. Appeal—Exceptions.
    Exceptions taken to rulings which are wholly discretionary, or where the ground of objection was not stated, present no error.
    2. Trial—Documentary evidence may be taken to jury room.
    It is not error to allow the jury on retiring to take with them documents-which are in evidence.
    8. Appeal—From city court—Weight oe evidence.
    A judgment of affirmance of the general term of the city court is conclusive as to the weight of evidence; and in the absence of an exception to the denial of a motion that a verdict be directed for plaintiff on the cause of action alleged, or the counterclaim, or that the counterclaim be dismissed for failure of proof, the common pleas is precluded from all inquiry whether there was any evidence to support a recovery by defendant.
    Appeal from a judgment of the general term of the city court of New York, which affirmed a judgment for defendants entered upon a verdict in their favor.
    Action to recover a balance of moneys alleged to have been had ' and received to plaintiff’s use. Defendants had judgment upon their counterclaim for services rendered as attorneys and counselors at law at plaintiff’s instance and request.

      James M. Smith, for app’lt; Charles Strauss, for resp’ts.

       Affirming 49 St. Rep., 876.

   Bischoff, J.

Not one of the numerous exceptions taken on the trial presents error. Some were taken to rulings which were wholly discretionary, while others are valueless because the ground of the objection was not stated. Cruikshank v. Gordon, 118 N. Y., 178; 28 St. Rep., 784. Nor was it error to allow the jury, on retiring, to take with them documents which were in evidence. Howland v. Willetts, 9 N. Y., 170.

Plaintiff sued to recover four hundred and seventy-five dollars, a balance alleged to be due him for moneys received by defendants to his use. Defendants denied the indebtedness and asserted a counterclaim for services rendered as attorneys and counselors at law at plaintiff's instance and request. The value of those services was conceded for the purposes of the trial to be the amount claimed. None but issues of fact were involved in the trial.

The judgment of affirmance of the general term of the court below is conclusive upon us as to the weight of the evidence, Rowe v. Comley, 11 Daly, 318; Smith v. Pryor, 16 id., 169; 30 St. Rep., 553; Arnstein v. Haulenleek, 16 Daly, 382; 84 St. Rep., 297; the submission of the evidence to the jury without objection conceded its sufficiency for that purpose, Barrett v. Third Ave. R. R. Co., 45 N. Y., 628; and in the absence of an exception to the denial of a motion that a verdict be directed for plaintiff on the cause of action alleged in the complaint or the counterclaim interposed by answer, or that the counterclaim be dismissed for failure of proof, we are precluded from all inquiry whether there was any evidence to support defendant’s recovery. Schwinger v. Raymond, 105 N. Y., 643; 7 St. Rep., 544.

Judgment of the general term of the court below affirmed, with costs.

Bookstaver and Pryor, JJ., concur.


text:
    Myer Hecht, Resp’t, v. Edward Brandus, App’lt.

      (New York Common Pleas, General Term,

      Filed June 5, 1893.)

    1. Contract—Employment—Termination.
    The complaint alleged an agreement in writing by which defendant
    • employed plaintiff for five years as manager of his business of manufacturing silverware for a percentage of the net profits; that by its terms defendant reserved the right of terminating the employment at any time upon payment of $2,000; that during said term defendant dismissed the plaintiff, giving as a reason the winding up of the business; and that a demand for the $2,000 was refused, and demanded judgment for said sum. The contract also provided for liquidated damages of $2,000, in case of a breach. Held,, that the complaint stated a cause of action on the contract itself, and not for a breach.
    2. Same—Waiver.
    At the time mentioned defendant instructed plaintiff to close down, sell the goods on hand, and stop the business, which he did. Held, that by so doing he did not release or waive any of his rights under the contract.
    3. Same—Offer of other employment.
    Plaintiff was under no obligation, under the circumstances, to accept an offer of different employment, nor to accept a weekly salary in lieu of the compensation mentioned in the contract.

      Appeal from a judgment of the general term of the city court, affirming a judgment entered upon a verdict rendered by direction of the court upon the conclusion of a trial by a jury, and from an order denying a motion for a new trial.

      William M. Bronk, for app’lt; John J. Linson, for resp’t.
   Bookstaver, J.

The principal contention on the part of the appellant is that the court below misconceived the nature of the action, and he contends that the complaint is framed to recover for a breach of a contract, while the court allowed plaintiff to recover upon a provision of the contract and not for a breach. It will be necessary to examine the complaint and the proceedings on the trial of the action in order to ascertain whether this contention is well founded. The complaint alleges in substance that on or about the 1st November, 1889, the plaintiff and the defendant entered into an agreement in writing, a copy of which was attached to and made a part of the complaint; that by the terms of the agreement the defendant reserved the right of terminating his employment of the plaintiff at any time upon the payment of the sum of $2,000, the employment being for the term of five years from the 1st November, 1889 ; that pursuant to such agreement the plaintiff entered upon the discharge of his duties as general manager of the business of the defendant, which consisted in manufacturing and dealing in fancy silverware articles and goods, until the 7th day of March, 1891, “ when the defendant dismissed this plaintiff from his employ, giving as a reason the winding up of his business; ” that on the 9th March, 1891, pursuant to the agreement, the plaintiff demanded of the defendant payment of the sum of $2,000, but that the same was refused, wherefore he demanded judgment for that amount. An examination of the agreement shows that the defendant had the right to terminate it at any time upon the payment of the sum of $2,000 and a share of the profits up to the time of such termination, and also that there was a provision for liquidated damages to the amount of $2,000 in the event of either party committing a breach of the agreement. On the trial, and before any testimony was taken, counsel for defendant moved to dismiss the complaint on the ground that it did not state facts sufficient to constitute a cause of action either under the contract annexed to the complaint or for a wrongful dismissal. But the court held, and we think properly, that there was a cause of action stated in the complaint founded upon the contract. It is true that appellant’s counsel, upon the announcement of that decision, stated as follows: “ Then the proper construction of the complaint is that the plaintiff sues for liquidated damages; ” to which the respondent’s counsel, we think through inadvertence, replied " That is our claim; ” for an examination of the appeal book shows that the action was tried on the theory that it was to recover for the $2,000 provided for upon the defendant electing to terminate the contract. The allegation of the complaint that the defendant “ dismissed this plaintiff from his employment, giving as a reason the winding up of his business,” was, in effect, equivalent to an allegation that he had elected to terminate the agreement.

That defendant so regarded it on the trial we think is evident from what took place at the close of the case after the evidence was in; for his counsel then moved to strike out the testimony given on the direct examination of the plaintiff as to a conversation had with defendant dismissing him from his employ, on the ground that plaintiff having elected to stand on the complaint as declaring on the option contained in the contract and not for damages for wrongful dismissal, any evidence as to a dismissal is irrelevant and incompetent; and thereafter plaintiff's counsel asked the court to direct a verdict in his favor because a contract had been shown between plaintiff and defendant which permitted the defendant to avoid the terms thereof on payment of $2,000, and that he had avoided the performance of such contract by an act which was as good as if he had really said : “ I hereby terminate the •contract and refuse to employ you further.” It is quite true that a recovery must be had secundum allegata el probata, Hawes v. Dobbs, 44 St. Rep., 890, and cases cited; but in this case the proofs did follow the allegations of the complaint, and the complaint, as before shown, was based upon a provision of the contract, and not a breach of it as contended for by the appellant. The action being on the contract itself and not its breach, it is unnecessary to further consider appellant’s argument based upon the breach of the contract, as that falls with his contention as to the nature of the action.

Nor do we think the plaintiff was estopped by anything he •did or said from claiming the $2,000 provided for in the contract. There was no proof of a waiver by him of this clause or of any abandonment of his rights in that respect, or of any release of the defendant therefrom, or of any rescission thereof. There is no claim of a technical release, but a waiver is sought to be made out by the plaintiff’s letter of November 18th, and his subsequent action in not dissenting from the defendant’s closing up the business, and also in negotiating with him for other employment. Waiver as defined by Bouvier is “ the relinquishment or •refusal to accept a right.” This plaintiff never did.

The fact that he.did not protest against the sale and closing up of the business cannot avail the defendant, because under the express terms of the contract defendant had the right to terminate the relations between the parties at any time; plaintiff’s consent to the sale neither added to nor took away from the rights of the parties under the contract; he consented to nothing but what the defendant had full power to do under it without his consent; that he aided the defendant in every way to carry out his determination to discontinue the business is nothing more than the duty of a faithful servant under such circumstances. That the determination to close out was defendant’s own act is clear from the case, for on December 1, 1890, he wrote the plaintiff “ if you are through manufacturing at the factory, please close down, as it is ■useless to make me pay the payrolls every Saturday, if, I don’t know, we have no orders. Personally I am positively through with the business and will run it no longer.” And again, on December 3, “ I don’t wish to retain anybody at all at the factory except Michael until Christmas. I want to stop all expenses, even $1.00. Therefore, sell all our stock this month, with a profit, if possible; at cost, or below, if compelled. The reason why I am determined to close up the business is that this year has proven the worst of any, except first year; that I don't want to pay out one single dollar more.” There was, therefore, no error in the court directing a verdict for the plaintiff and refusing to send to the jury the question as to whether or not the contract had been wholly or partly released or abandoned by mutual consent. There is no evidence in the case which would have justified the jury in finding that there was such waiver or abandonment, and if they had so found, it would have been the duty of the court below to have set aside the verdict.

Nor is the appellant’s contention that the court erred in directing a verdict for $2,000 and interest, less the amount of defendant's admitted counterclaims, well founded. It is based upon the theory that the recovery could be for unliquidated damages only, and upon a breach of the contract; whereas, as we have before shown, it was founded upon a provision of the contract.

Plaintiff was under no obligation to accept the proposition of Hastings or to go into any other business than that designated in the contract; nor was he obliged to accept a salary of forty dollars per week in lieu of the compensation mentioned in the contract ; he had never agreed to do so, although he had frequently expressed himself as willing to go into any other kind of business with tfie defendant, but, of course, that was upon the implied understanding that the terms of such new employment should be agreeable to him, and he was not called upon to accept such until offered. Before any such offer was made, defendant’s liability to him for $2,000 as liquidated damages had already been fixed, and he was not bound to accept the offer. Besides, it is clear from the record in this case that the expression of a willingness to enter into other employment did not in any way influence the defendant in his determination to discontinue the business in which he then was, which had proved unprofitable from the first.

The exception to the refusal to permit the witness Hastings to state the conversation between plaintiff and defendant on March 7, 1891, with regard to the continuing of the plaintiff in defendant’s employ, was no error. If it could be construed as an offer by defendant to give plaintiff different employment, it was not competent in reduction of damages because the action was not for damages, but upon the contract.

The other alleged errors in the refusal of the court to admit evidence are all upon the erroneous theory that the action was based upon a breach of the contract, and cannot avail the appellant in our view of the nature of the action.

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

Bischoff and Pryor, JJ., concur.

       Affirming 51 St. Rep., 137.