text:
    William P. Roome et al., App’lts, v. Frederick C. Jennings et al., Resp’ts.

      (New York Superior Court, General Term,

      Filed July 5, 1892.)

    Attachment—Injury to personal property.
    Defendants contracted to purchase certain personal property Of plaintiffs, but the latter discovering that they were principals in the transaction and not brokers, as they represented, rescinded the contract, and the market fell. Held, that this did not constitute an injury to personal property within the meaning of § 635 of the Code. The word injury as there used means something which takes away the property, deprives the owner of its possession or inflicts some lasting injury upon it by direct means.
    Appeal from order of special term, vacating a warrant of attachment

      The following is the opinion of the special term :
    McAdam, J.—The attachment was obtained on the ground of “ an injury to personal property, in consequence of fraud,” Code, § 635, subd. 3, a term which is defined to mean an act whereby “ the estate of another is lessened, other than a personal injury or breach of contract.” Code, § 3343, subd. 10. The defendants never obtained possession of the plaintiffs’ property, as in Whitney v. Hirsch, 39 Hun, 325, did no actual injury to it, but made a contract to purchase the property, which contract the plaintiffs rescinded because they discovered that the defendants, who assumed to act as brokers, were in fact acting as principals. The market fell, and the plaintiffs insist that they lost in consequence-$7,500. The defendants may be liable for breach of duty, and the difference in value may be the measure of recovery, but it does not follow that they injured the plaintiffs’ property within the legal meaning of that term. See 2 Sandf., 730; 3 Code R., 47; 13 How Pr., 222: 2 Abb. Pr., 259. The defendants did nothing to lessen the estate of the plaintiffs, which remains as before, and it was not affected, except as to value, a thing controlled entirely by the fluctuations of the market, which at times rises and fails. The word injury, as used in the Code, is not so elastic as to yield to such a changeable construction, but upon something which takes away the property, deprives the owner of its possession or inflicts some lasting injury upon it by direct means. The motion to vacate the attachment must be granted, with ten dollars costs.

      James J. Allen (F. A. Thompson, of counsel), for app’lts; Putney & Bishop (James L. Bishop, of counsel), for resp’ts.
   Per Curiam.

The order appealed from is affirmed, with ten dollars costs and disbursements, on the opinion of the court below.

Freedman, Dugro and Gildersleeve, JJ., concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Nellie Potter, Adm’rx, Resp’t, v. The New York Central & Hudson River Railroad Co., App’lt.

      (New York Superior Court, General Term,

      Filed July 5, 1892.)

      Jíeglisence—Proof of—When a question for jury.

    While a plaintiff is bound to show affirmatively that the negligence of the defendant was the sole cause of death, it is not necessary to do so by direct and positive evidence of negligence of defendant and freedom from negligence of deceased, but these facts may be shown by circumstances from which the inference may be fairly- and logically drawn. Where the circumstances are such that inferences may be differently made by different minds, the question is one for the jury.
    Appeal from judgment in favor of plaintiff, entered on a verdict, and from order denying motion for a new trial.
    Action to recover damages for the death of plaintiff’s intestate, alleged to have been caused by the negligence of defendant.
    The following is the opinion of the court below:
    McAdam, J.—John Potter, a car inspector in the defendan s employ, was inspecting certain of its cars when a train of other cars propelled by two engines suddenly switched backward on the middle track, pushing together the cars between which he was at work, crushing him to death. He had no warning. The court sent the question of negligence to the jury, and they awarded his widow and administratrix $5,000 damages. The defendant insists it was error not to non-suit the plaintiff, and cites Besel v. N. Y. C. & H. R. R. R. Co., 70 N. Y., 171, to sustain its claim. Whether the defendant performed its duty to its-employee was, on the evidence and the inferences to be drawn from it, a question for the jury. Abel v. D. & H. C. Co., 103 N. Y., 581; 4 St. Rep., 269; S. C., 128 N. Y., 662; 40 St. Rep., 626. The jury were properly instructed as to the law, and their verdict on the facts is sufficiently supported by the proofs. True, it was incumbent on the plaintiff to show affirmatively that the negligence of the defendant was the sole cause of death. But it was unnecessary to to do this by positive and direct evidence of negligence of the defendant, and of freedom from negligence of the deceased. The proofs may be indirect, and the evidence had by showing circumstances from which the inference is fairly and logically to be drawn that these essential facts existed. When, from the circumstances shown, inferences are to be drawn which are 'not certain and incontrovertible, and may be differently made by different minds, the question is one for the jury. See note to 39 Am. at p. 513; Hays v. Miller, 70 N. Y., 112; Powell v. Powell, 71 id., 71; Hart v. H. R. B. Co., 80 id., 622; Ochsenbein v. Shapley, 85 id., 224. The inferences to be drawn from the evidence were sufficient to warrant the jury in finding that, the defendant had not given reasonable protection to its employee while in the performance of his work, and that its breach of duty and negligence resulted in his ■death. The motion for a new trial must be denied. Forty days stay of execution after notice of entry of judgment, and a like time to make a case.

      Abram Kling, for resp’t; Frank Loomis, for app’lt.
   Per Curiam.

For the reasons set forth in the opinion of the court below, the judgment and order appealed from are affirmed, with costs.

Freedman, Dugro and G-ildersleeve, JJ., concur.


author: Gildersleeve, J.

text:
    Jonathan D. Condict, Resp’t, v. Jane H. Cowdrey, App’lt.

      (New York Superior Court, General Term,

      Filed July 5, 1892.)

    .Brokers—Questions eor jury. •
    Plaintiff was employed by defendant’s agent to sell certain property. He introduced certain persons to said agent, and an agreement was made with certain of them which consisted of a receipt and an agreement for a deposit in escrow. In an action for commissions, the evidence as to whether such agreement was a contract of sale or a mere option was conflicting. Held, that such question and that of plaintiff’s instrumentality in bringing it about were questions for the jury.
    Appeal from judgment entered on the verdict of a jury, and from an order denying defendant’s motion for a new trial.

      William M. Ivins (W. W. MacFarland, of counsel), for app’lt; Cannon & Atwater (Henry G. Atwater, of counsel), for resp’t.
   Gildersleeve, J.

This action is brought by plaintiff to recover from defendant commissions alleged to have been earned under a certain agreement between himself and the defendant, relating to the sale of lands. The plaintiff is a real estate broker, and in January, 1887, was introduced to one Samuel A. Dickson, who at that time was agent and attorney in fact of defendant, and represented her in relation to all matters connected with the Kentucky lands, which the plaintiff was employed to sell. At this interview Mr. Dickson gave Mr. Oondict a list of the lands, showing the lands in each county, and the original sources of title. Mr. Oondict soon succeeded in interesting in the matter one Jere Baxter, with whom was associated one W. A. Millikin; and the defendant gave Baxter an option on the land to September 10th at ten cents an acre; which option was subsequently extended.

About this time, the plaintiff asked for an agreement in writing from defendant, and thereupon defendant gave plaintiff a written agreement in the following terms:

To Jonathan D. Oondict, Esq., US Broadway, New York:
“ Sir—I hereby agree to pay you a commission of ten per cent on the price I may accept for the 435,000 acres of laud in Eastern Kentucky, belonging to me, if sold through your agency. I hereby acknowledge your agency in bringing Jere Baxter and his associates to me, whereby a refusal until September 10th was given by me.
Jane H. Cowdrey.”

It was claimed, in behalf of defendant, upon the trial, that plaintiff was not the moving party in the transactions that took place between the defendant and others, which plaintiff claimed were the consummation showing that he had earned his commission. There was some conflict of evidence as to whether Millikin, as well as Baxter, was first introduced to Dickson by plaintiff. On this question the jury, as indicated by their verdict, found in favor of plaintiff’s contention; the evidence justifies their finding and is conclusive upon this question.

The employment of the plaintiff by defendant not being disputed, and assuming that whatever contract was made with Wolffe and Millikin came through the plaintiff’s instrumentality, this question remains: Was the latter contract such a one as constituted a fulfillment of plaintiff’s contract with defendant, and entitled plaintiff to his commissions ? The written evidence of the contract with Wolffe and Millikin, in reference to the Kentucky lands, consists of two papers; one a receipt, and the other an agreement for a deposit in escrow. Upon a previous trial of this action, the court held that all prior negotiations were merged in these two papers; that they established a contract for the sale and purchase of the Kentucky lands, and directed a judgment in favor of the plaintiff, awarding him his commissions.

When the case reached the court of appeals, that court held, 123 N. Y., 463; 34 St. Rep., 107, as follows: “If that construction was correct, the judgment awarded was an inevitable result; "but the defendant claims that the writings showed merely an option or privilege, for which the alleged vendees paid the sum of $2,000, and which left them at liberty to purchase or to refuse to purchase at their own choice and pleasure, and so the minds of the parties never met, and the broker’s efforts to effect the sale failed of success.” The learned appellate court was in doubt as to what construction should be given these two papers, read together, in the light of such surrounding facts and circumstances as were proved; but it did not hold that the construction given by the learned trial judge was erroneous.

Upon the first trial the defendant insisted “ that there was an unexpressed condition upon which the writings were delivered; ” asked to prove that fact and so establish what she claimed was the whole and complete contract. In truth, the defendant did introduce evidence, upon the first trial, tending to establish the “ unexpressed condition ” she claimed existed; but, upon final consideration, this paroi evidence was rejected by the court on the ground that the writings were conclusive. The court of appeals held that this ruling was erroneous, and for the error reversed the judgment. The court of appeals say that the rejected evidence of Mr. Dickson, the defendant’s agent, if true, would show that what appears upon the face of the papers to have been an agreement of sale, is in reality a privilege to purchase at a fixed price, or to refuse to purchase upon the forfeiture of a definite sum; or what seemed to be an agreement of sale was in truth a mere option to purchase. * * * “In other words, there was no absolute contract of sale, but merely an option.” The court of appeals further say: “This evidence was contradicted, and so there arose a question of fact for the jury, which should have been submitted to them under proper instructions.”

No exceptions were taken to the admission or rejection of evidence in the course of the trial, and no exception was taken to the charge of the learned trial judge. The evidence above mentioned, that had been rejected upon the former trial, was admitted, and upon the question of fact that it raised the jury found adversely to the defendant, upon sufficient evidence.

We are of the opinion that whether the transaction was or was not a sale was, upon all the evidence, a question for the jury, as was also the question of plaintiff’s instrumentality in bringing it about.

The jury having found these facts in favor of the plaintiff, he became in law entitled to his commissions.

Where a broker employed to effect a sale has found a purchaser -willing to take the terms made, 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; Sibbald v. Bethlehem Iron Co., 83 N. Y., 378.

We reach the conclusion that the judgment and order should he affirmed, with costs.

Dttgro, J., concurs.


text:
    Frederick Michel et al., App’lts, v. James B. Colegrove, Resp’t.

      (New York Superior Court, General Term,

      Filed July 5, 1892.)

    New trial—Newly discovered evidence—Practice.
    A motion to set aside a judgment and to suppress a deposition on the ground of newly discovered evidence must he made on a case and exceptions as well as affidavits setting forth the nature of such evidence.
    Appeal from an order of the special term, dated November 12, 1891, denying plaintiffs’ motion to set aside a judgment of the special term and suppress the deposition of a witness, with leave to renew on case and exceptions, in addition to affidavits.

      Henry Daily, Jr., for app’lts; Thornall, Squires & Pierce (Franklin Pierce, of counsel), for resp’t.
   Gildersleeve, J.

This order denied the motion of plaintiffs to set aside the judgment of the special term herein, and to suppress the deposition of one George Battelson, with leave to renew the motion, so made, upon a case and exceptions, in addition to the affidavits, upon which alone the motion was made.

Plaintiffs’ motion was founded on affidavits setting forth the fact that since the entry of the judgment herein plaintiffs had learned that defendant, who had caused the testimony of one Battelson to be taken by commission in London, had, previous to the execution of the commission, written said Battelson a letter, enclosing a copy of the interrogatories, and indicating the answers that said witness should give, which instructions were duly followed by said witness; and plaintiffs asked to have said deposition suppressed and the judgment set aside, on this newly discovered evidence. The court held that such a motion should be made on a case and ■exceptions, as well as the affidavits setting forth the nature of the newly discovered evidence, and denied the motion, with leave to renew on such case.

We are of opinion that the court below correctly indicated the practice to be followed in such a case, and that the order was properly granted. Holmes v. Evans, 37 St. Rep., 369; 7 Wend., 331; Warner v. West. Tr. Co.. 5 Robt., 499; see, also, Russell v. Randall, 123 N. Y., 436; 34 St. Rep., 110.

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

Dugro, J., concurs.


text:
    Frederick Michel et al., App’lts, v. James B. Colegrove, Resp’t.

      (New York Superior Court, General Term,

      Filed July 5, 1892.)

    1. New trial—Newly discovered evidence—Depositions—Estoppel.
    Where the deposition in question was merely cumulative and did not benefit the defendant, and plaintiffs knew of the answers therein two years before the trial, a motion to set aside the judgment and suppress the deposition on the ground that defendant dictated such answers should be denied on the ground of plaintiffs’ loches and negligence, as it would be presumed that by proper inquiry they could have obtained information of such fact before the trial.'
    3, Same.
    A judgment will not be vacated for the purpose of allowing the defeated party to attack the credibility of the witnesses of the successful party or contradict them or show that they have testified falsely; nor can a new trial be obtained for the purpose of furnishing new cumulative evidence- or to destroy the cumulative evidence of the successful party.
    Appeal from an order of the special term denying plaintiffs’ motion to set aside a judgment of the special term and to suppress the deposition of a witness, which order bears date March 24, 1892.

      Henry Daily, Jr., for app’lts; Thornall, Squires & Pierce (Franklin Pierce, of counsel), for resp’t.
   Gildersleeve, J.

This is an appeal from an ofder of the special term, by Judge McAdam, dated March 24, 1892, denying plaintiffs’ motion to suppress the deposition of one George Battelson, taken under a commission, and to set aside a judgment of the special term, entered herein, and for a new trial. This motion was made upon a case and exceptions, and upon affidavits setting forth the fact that since the entry of the judgment herein, plaintiffs had learned that defendant, who had caused the testimony of one Battelson to be taken by a commission in London, had, previous to the execution of the commission, written said Battelson a letter, enclosing a copy of the interrogatories, and indicating the answers that said witness should give, which instructions were duly followed by said witness.

In an affidavit, one of the plaintiffs stated that said Battelson informed him, when in London, subsequent to the trial herein, that before the execution of said commission he, said Battelson, received said letter from defendant, and answered the interrogatories as directed by defendant. The defendant, in his affidavit, used in opposition to the motion, admits the writing of the letter to Battelson, but disclaims any intention to direct Battelson in the answers he was to make to the interrogatories, or in any way to influence him. He further says, by way of explanation, that he had personal knowledge of all the facts stated in his letter, and that he also-knew that Battelson knew the same facts; and he positively swears that each and every one of the answers of Battelson to the interrogatories in question was true ; and that the occasion of writing the letter arose from a letter written to him by Battelson, in which Battelson set forth the facts as to which he subsequently testified under the commission, and asked him, defendant, to suggest the form of answers to be used by him, said Battelson ; and that said letter was written by defendant without any consciousness, at the time, that it was improper or indelicate for him to suggest the forms of the answers, and without any intent whatever of in any way influencing the evidence of said Battelson.

This letter of the defendant certainly indicates a disregard of the proprieties that all honorable men observe in the conduct of any litigation, however bitter, and is a trespass upon the code of ethics which should control under such circumstances, that calls-for severe condemnation by this court. In re Eldridge, 82 N. Y., 161; Butler v. Flanders, 44 N. Y., Super. Ct., 531; Graham v. Carleton, 31 St. Rep., 127. We deem the conduct of the defendant in this respect inexcusable. But, from a careful examination of all the evidence, we are not satisfied that it was a wrong from which the defendant derived any benefit. This conduct of the defendant, therefore, does not afford sufficient reason to entitle the motion to prevail.

The plaintiffs knew two years before the trial that a commission had been issued for the examination of Battelson, and they knew what answers he had made to the several interrogatories. Yet no motion was made to suppress. The excuse is that the facts were not known until after the trial; but could they not, by the exercise of proper diligence, have been discovered before ? It is reasonable to suppose they could have been, and, therefore, the plaintiffs are estopped from the relief sought, by reason of their negligence and laches. See Baylies’ New Trials and Appeals, 524, 525, and cases there collected; Quinn v. Lloyd, 31 N. Y. Supr. Ct., 255; Smith v. Nelson, 62 N. Y., 288. If the least fault be imputable to the plaintiffs, they will ask for relief in vain. 3 Graham & Waterman, 1026; Weston v. N. Y. El. R. R. Co., 42 Supr. Ct., 162.

Again, the testimony was not controlling, but cumulative; and there is enough in the case, without the testimony of said Battelson, to sustain the judgment rendered. There is no reason to believe that Battelson would testify differently if re-examined; nor is there any reasonable certainty that a new trial would produce a different result.

The disclosures made by the evidence, upon which the plaintiffs rested their motion, would be of no value upon a new trial, except by way of affecting the credibility of Colegrove and Battelson. A judgment will not be vacated for the purpose of allowing the defeated party to attack the credibility of the witnesses of the successful party, or to contradict them, or to show that they have testified falsely. See Smith v. Lowry, 1 Johns. Ch., 320; McIntire v. Young, 39 Am. Dec., 447; Starin v. Kelly, 47 Supr. Ct., 291; Emmerich v. Hefferan, 53 id., 98. The plaintiffs now seek to destroy the judgment by removing or destroying the cumulative, corroborative evidence in Battelson’s deposition. But a new trial cannot be obtained either for the purpose of furnishing new cumulative evidence, or for the purpose of destroying the cumulative evidence of the successful party. See Baylies' New Trials and Appeals, 525, and cases there collected.

We quote with entire approval from the decision of Judge McAdams in disposing of this motion: “ This rule is settled, that if a witness examined on commission is instructed by the party in interest how to testify, the commission will be suppressed, at the instance of the adverse party, on the ground that such conduct is prejudicial to him, corrupting to the witness, an abuse of process, and a fraud on the court, interfering with pure administration of justice. But suppressing a commission in advance of the trial, and granting a new trial after an adverse judgment, is quite a different thing. A judgment is intended to terminate a litigation and. to conclude the parties as to every question raised, or which might have been raised, befoi’e the final result was reached, and rights so lost may never be regained.”

For the reasons above stated, it follows that the order appealed from must be affirmed, with ten dollars costs and disbursements.

Freedman and Dugro, JJ., concur.


text:
    George H. Studwell et al., App’lts, v. The Mutual Benefit Life Association of America, Resp’t.

      (New York Superior Court, General Term,

      Filed July 5, 1892.)

    1. Insurance (Life)—Construction of policy.
    The policy and the application therefor constitute the contract of insurance, and must he construed as one instrument.
    3. Same—Suppression of material fact.
    The application provided, among things, that the agreement should he void if any facts which should have been stated have been suppressed therein. In answer to a question as to other insurance, the insured stated one policy in another company. The proofs of death showed that he had other policies, and it was undisputed that they existed prior to the making of such application. Held, that the failure to disclose such other insurance was a suppression of facts which should have been stated; that it would be presumed that such suppression was intentional, and that the court properly dismissed the complaint.
    Appeal from judgment of the trial, term dismissing the complaint.

      Copper & Jenks (Daniel Clark Briggs, of counsel), for app’lts; E. T. Lovett, for resp’t.
   Gildersleeve, J.

In February, 1872, the plaintiffs herein and one Charles H. Hyde were copartners. On the 10th day of January, 1890, said Hyde died, leaving the plaintiffs sole surviving partners of said firm. On the 6th day of'January, 1887, Hyde was a debtor to said firm in a large sum of money, which indebtedness increased from time to time, and at his death amounted to upwards of $20,000. On said 6th day of January, 1887, the defendant corporation issued a policy of insurance or certificate of membership to said Charles H. Hyde for $10,000, payable upon his death to the firm of Studwell, Sanger & Co., of which firm the plaintiffs herein are the sole surviving partners. This action was brought to recover the sum of $10,000 upon said policy of insurance, or certificate of membership, issued as aforesaid. The application, signed by Hyde, for the policy in question, contains tire following statement: “ That the foregoing application and this declaration, together with the answers and explanations given to the above various questions, and inclusive of those propounded by the medical examiner on the within pages hereof, shall form the exclusive and only basis of the agreement of the above named applicant and the Mutual Benefit Life Association of America, and that if any misrepresentations, or fraudulent or untrue answers or statements have been made, or if any fads which should have been stated to the association have been suppressed therein, * * * or should the applicant fail to comply with any of the terms of this agreement, or with any of the conditions and agreements contained in the certificate of membership, -» -x- * this agreement shall become null and void, and all moneys which shall have been paid shall be forfeited to the said association for its sole benefit.”

At the conclusion of the statement made to the medical examiner, Mr. Hyde further says: “ I hereby further declare that I have read and understand all of the foregoing questions put to me by the medical examiners, and the answers therein, and that the same are warranted by me to be true.” The by-laws are also made a part of the policy. Section 21 of the by-laws states, “ If any person secures membership by concealing or suppressing any material facts, or if the statements in the application for membership * * * are in any respect untrue, the membership shall cease and all payments shall be forfeited to the association.” The policy in suit and the application therefor constituted the contract of insurance between Charles H. Hyde and the defendant, May on Insurance, § 158, and must be construed, as one instrument. Mut. Ben. L. Ins. Co. v. Miller, 2 Ins. L. J., 101; Lycoming Mut. Ins. Co. v. Sailer, 67 Pa., 108; Burritt v. Sar. Co. Mut. F. Ins. Co., 5 Hill, 188; Pierce v. Empire Ins. Co., 62 Barb., 636; Vose v. Eagle Life & Health Ins. Co., 6 Cush., 42; Chaffee v. Catt. Co. Mut. Ins. Co., 18 N. Y., 378; France v. Ætna L. Ins. Co., 2 Ins. L. J., 657; Angell on Ins:, § 141.

In the application for insurance, this question was asked of Mr. Hyde: “Q. What amounts are now insured on your life, and in what companies ? A. Ten thousand dollars. Family Fund.” The plaintiff's proofs of death submitted to the defendant show that Mr. Hyde had $10,000 insurance in the Mutual Life Insurance Company of Hew York; they show that on January 30, 1868, many years prior to the application made to the defendant, Mr. Hyde took out two policies of insurance in the Mutual Life Insurance Company of Hew York, for $5,000 each, and that the same were in full force up to the time Mr. Hyde died, and that the amounts insured by said policies were actually paid to Mr. George H. Studwell, one of the plaintiffs in this action, on the 24th day of January, 1890.

These policies were received in evidence upon the trial, and established the fact beyond dispute that in addition to the insurance mentioned by Mr. Hyde in his application, namely, $10,000 in Family Fund, he was also insured, at the time of making said application, :r. the sum of $10,000 in the Mutual Life Insurance Company of Hew York. At the conclusion of the evidence the learned counsel for the defendant made a motion to dismiss the complaint upon the ground, among others, that Mr. Hyde, in the answers to questions made to defendant, and contained in the application for the insurance in question, suppressed the fact that he was insured in the Mutual Life Insurance Company for $10,000. The learned trial judge dismissed the complaint upon that ground, without passing upon the other grounds urged.

The evidence disclosed an undisputed suppression of fact. One of the stipulations contained in the agreement between Mr. Hyde and defendant, which constituted the contract of insurance upon which this action was brought, is as follows: “ Or if any facts, which should have been stated to the association, have been suppressed therein, * * * then this agreement shall become null and void.” There was nothing to go to the jury upon this point It incontestably appeared that a material fact had been suppressed.

The only remaining question was this: Was the fact intentionally suppressed? On this point the learned trial judge, in disposing of the motion to dismiss, said: “The jury could not find to the contrary. If a man knows, is in possession of his senses, and his intellect is directed to a particular thing, he may not tell us an untruth, conscious that it is untrue, as matter of business.”

This answer appeared on its face to be complete; it did not, however', contain the whole truth, and in that respect it was false. Mr. Hyde’s omission to disclose the existence of the policies in the Mutual Life Insurance Company was clearly a suppression of il facts which should have been stated to the association. ” A man is presumed to intend the natural consequences of his acts. Mr. Hyde’s act of omission in this respect deprived the defendant of material information. There could be no other reasonable conclusion from the act itself, from the existence of the policies at the time of his death, and other proof in the case, than that he knew of their existence, and intentionally suppressed the fact. “ Where an answer of the applicant to a direct question of the insurer purports to be a complete answer to the question, any substantial misstatement or omission in the answer voids the policy issued upon the face of the application.” Phœnix Life Ins. Co. v. Raddin, 120 U. S., 183; 7 Sup. Ct. Rep., 500. “Where the answer of an applicant to a direct question purports to be a complete answer, any material misstatement or omission in the answer avoids the contract.” Cooke on Life Ins., 34, § 18. In the case of Towne v. Fitchburg Ins. Co., 7 Allen, 51, which was an action on a fire insurance policy that provided that the application therefor should contain a full, fair and substantially true representation of all the facts and circumstances respecting the property, the insured having mentioned only one mortgage as being upon the property, when there were in fact two, it was held that this suppression of fact voided the policy, and that the fact that the insured did not then recollect the other mortgage was immaterial. Any other rule would be unnecessarily severe, and might often work great hardship to insurance corporations.

It would be unreasonable to call upon defendant, years after policies of insurance had been issued, and the fact_ that has transpired leading up to their issue has occurred, to give direct proof of the intentional omission on the part of the insured of a fact which, by the terms of the contract, the insured had agreed to place in defendant’s possession.

For the reasons above stated, it follows that plaintiffs were not entitled to recover, and that the dismissal of the complaint did ■ not constitute error.

It is unnecessary to discuss the question of warranty.

We are of opinion that the judgment appealed from should be affirmed, with costs.

Freedman and Dugro, JJ., concur.


author: Dugro, J.

text:
    Frederick Seggerman et al., Resp’ts, v. Napoleon Valentine et al., App’lts.

      (New York Superior Court, General Term,

      Filed July 5, 1892.)

    Contract—Importation—Duties and fines.
    Plaintiffs imported certain goods, one-half of which were for defendants, under a contract by which defendants were to pay the “actual expenses advanced ” by plaintiffs. Defendants paid their one-half of the duty, but upon a reappraisement it was discovered that there had been an undervaluation and an additional duty was levied which plaintiffs had to pay. Held, that such additional duty, whether considered as a duty or a fine, was included in the term expenses in the contract, and having been incurred without plaintiffs’ fault, they were entitled to recover one-half thereof from defendants.
    Exceptions ordered heard in the first instance at general term upon a motion to set aside a verdict and for a new trial.

      Charles Currie, for resp’ts; John H. Parsons, for app’lts.
   Dugro, J.

The exceptions were ordered to be heard in the first instance at general term.

In July, 1890, plaintiffs and defendants contracted as follows: The plaintiffs agreed to take 5,000 crates of onions to be imported at a stated cost and freight, paying defendants cash on arrival, and taking all risk of importation; the defendants to insure goods under their policy and to pay plaintiffs for the actual expenses advanced; there were other terms in the contract unnecessary to state.

Plaintiffs imported 5,000 crates of onions, one-half for defendants, and received payment from defendants of all that was claimed, including one-half the amount of duty paid upon the whole original import entry.

Subsequently upon a reappraisement of the goods it appeared that they had been undervalued in the original entry at the" custom house, and that the duty paid was $36.50 less than that which should have been paid. By reason of this fact an additional duty of $912.06 was payable under the laws of the United States on the whole importation.

These two amounts the plaintiffs paid, and they now ask that the defendants contribute one-half.

The complaint sets forth that import duties to the amount of $510.48 accrued, which plaintiffs paid on defendants’ behalf and for their account; and on account of which there is still unpaid $474.38.

The answer denies that these duties were paid, but admits the payment of $66.10 as duties and sets forth that the $474.38 referred to in the complaint was paid, if at all, as a fine or penalty for an undervaluation in the entry of the onions for which the defendants should in no manner be held liable.

It will be observed that the defendants contend in their answer that the mere fact that the $474.38 was paid as a fine or penalty for an undervaluation is sufficient defense to the plaintiffs’ claim.

How, it matters not whether the payment be considered as for a fine for undervaluation or for an additional duty; if it was for an expense within the meaning of the term “ expenses,” as used in the contract, the defendants should pay it.

A fair interpretation of the word leads to the conclusion that it included the duties or fines. The parties themselves interpreted it to include the import duty.

The plaintiffs were necessarily compelled to pay the amount in question, and as the fine does not appear to have been imposed through any fault of plaintiffs (in fact it, is not pleaded to have been imposed through the plaintiffs’ fault), the exceptions should be overruled and the plaintiffs should have judgment upon the verdict, with costs.

Gtldersleeve, J,, concurs.


text:
    Catherine S. Hunter, Resp’t, v. The Manhattan Railway Co. et al., App’lts.

      (New York Superior Court, General Term,

      Filed July 5, 1892.)

    1. Trial—Notation or requests to eisd.
    An endorsement upon requests to find that each of them is to be marked refused except as far as covered by the findings of fact and conclusions of law settled and signed by the court, while not a strict, is a substantial compliance with § 1023 of the Code.
    3. Same.
    Where the proper note has not been made upon the requests to find, the proper course is to apply to the court to have the omission supplied or mistake, if one, corrected, and if such application is refused, to have such application and refusal made a part of the record.
    Appeal by defendants from a judgment for the plaintiff, entered upon a decision of the special term.

      I. O. Miller, for resp’t; Davies & Rapallo, for app’lts.
   Gildersleeve, J.

The judgment directs that the plaintiff recover of the defendants the sum of $12,556.25 damages and interest, and $941.23 costs and extra allowance. It also restrains defendants from maintaining or using their elevated railway in front of plaintiff’s premises, unless the defendants shall, within the time and in the manner specified therein, pay to the plaintiff the sum of $12,000, with interest from the date of this judgment, in exchange for a conveyance and release of the property appropriated by the defendants.

A fair preponderance of evidence sustains the findings of the court below, and justifies the judgment. There are no exceptions to the admission or exclusion of evidence that are of sufficient importance to require discussion.

The omission of the court below to comply strictly with the letter of § 1023 of the Code of Civil Procedure would not warrant a reversal of this judgment. It will not be denied that if the court below disregarded defendants’ requests and made no -response to any of them, it neglected its duty ; and if the error prejudiced the appellants, the judgment should be reversed. See Matter of Hicks, 14 St. Rep., 323; but if such neglect is not prejudicial to the appellants, it is not ground for reversal, see Uhlenhaut v. Man. Ry. Co., 46 St. Rep., 23.

Section 1023 of the Code provides that “At or before the time when the decision or report is rendered, the court or referee must note in the margin of the statement the manner in which each proposition has been disposed of,” etc. The court below endorsed upon the defendants’ proposed findings of fact and conclusions of law the following ruling: “ Each of the within requests is to be marked ‘ refused,’ except so far as covered by the findings of fact and conclusions of law settled and signed by me.” This is not a strict compliance with the requirements of § 1023 of the Code, inasmuch as this ruling was endorsed upon, the proposed findings, instead of being noted in the margin of the statement, as required by the statute. The action of the court below did, however, indicate “ the manner in which each proposition has been disposed of,” but did not note “ in the margin of the statement.” Hence, although it is not an absolute compliance with the terms of the statute, it is a substantial compliance, see Livingston v. Manhattan R. Co., 42 St. Rep., 4, for the purpose of the section is, doubtless, to require the court or referee to pass upon such request and indicate the manner in which it has been disposed of. In the case at bar, each and all of defendants’ requests were refused, except so far as they had been covered by the findings settled and signed by the court. This disposes of the requests substantially in accordance with the purpose of the section referred to.

In the case of Livingston v. Man. R. Co. (supra), the general term of this court held that: “ While, therefore, it may be technically the duty of a judge or referee to pass upon such requests, that duty will be fully performed by a specific denial of each and every one of them demanding a fact to be found which either is immaterial or has already been substantially covered by the findings embodied in the decision or report.” And in the case of McCulloch v. Dobson, 44 St. Rep., 89, the court of appeals held that the omission of a referee to indicate upon the margin of the paper or otherwise his disposition of certain propositions of fact and law submitted to him, under § 1023 of the Code, is not ground for reversal, where “ the propositions were nearly all either covered by findings made by the referee and stated in his report, or they were immaterial.”

In any view, we do not think the grounds here urged for reversal are properly before the general term. The better practice in such a case would have been to apply to the court below to have the omission supplied or mistake, if one, corrected, and, in the event of the request being refused, to have made the application and refusal a part of the record. Such a course would have enabled the court below to supply an omission that might have been the result of oversight or mistake, and would have secured the presentation of a record prepared in accordance with the views of the trial judge. See McCulloch v. Dobson, supra.

We are of opinion that the judgment appealed from should be affirmed, with costs.

Dug-ro, J., concurs.


text:
    Mary McKay Greenwood et al., Ex’rs, Resp’ts, v. The Manhattan Railway Co. et al., App’lts.

      (New York Superior Court, General Term,

      Filed July 5, 1892.)

    1. Railroad—Elevated—Evidence of rental value.
    In an action against an elevated railroad, leases of the premises affected by it are admissible as evidence of rental value. An agreed rent, though not conclusive, is strong evidence of the real value of the use and occupation, and where a lease is properly executed and recorded the presumption is that it is bona fide, and the burden of proof is upon the railroad to show that there were separate arrangements to pay a less rent or that the leases were not acted upon.
    2. Same—Entries of collection of rents.
    Entries of the collection of rents made by a deceased person which are shown to have been made prior to the building of the road are admissible on the question of rental value.
    Appeal from a judgment, entered on the verdict of a jury in favor of the plaintiffs, and from an order denying defendants’ motion for a new trial.

      Robert S. Rudd, for resp’ts; Davies & Rapallo, for app’lts.
   Gildersleeve, J.

The judgment awards to the plaintiffs $7,000 damages, together with $549.04 costs, for the rental loss sustained by the plaintiffs in their premises Nos. 31 and 33 Yesey street in this city, by reason of the erection and operation of defendants’ elevated railroad.

The defendants’ counsel relies, in his argument for a reversal of the judgment, upon two alleged errors of the trial judge in the admission of evidence; namely, the admission of entries made by deceased persons in the books of the Meeks estate, unauthenticated by any direct proof as to the time when they were made or as to the knowledge possessed by the persons making them; and also the admission of the leases of various properties, unauthenticated by any proof of possession under them or of the payment of the stipulated rent.

The objections to the admission of the leases, we think, were pronerly overruled. The agreed rent is a strong evidence of the real value of the use and occupation. See More v. Deyoe, 22 Hun, 222. It is not, of course, conclusive evidence, but it is some evidence, and is worthy of admission. The defendants’ counsel insists that the plaintiffs should have proved that the leases were acted upon, and were not waste paper; that the lessees took possession of the premises and paid the rents stipulated for in the leases, and that there were no separate arrangements by which the lessees were allowed to pay less than the rents specified in the leases. But where a lease is properly executed and recorded, the presumption is that it is bona fide; and the burden of proof was upon the defendants to show that there were separate arrangements allowing the lessees to pay less than the rents called for by the leases, or that the leases were never acted upon.

Bor do we think the defendants’ objection to the admission of the entries, made in the books of the Meeks estate, well taken. Edward B. Meeks testified that he was the executor of Joseph W. Mcelcs, deceased, who in his lifetime was the owner of Bos. 14, 16, 28 and 30 Yesey street; that in 1876, two years before the death of his father, the said Joseph W. Meeks, he took charge of the books relative to the rents of these buildings for his father; that when he so took charge of said books he found certain entries relative to such rents in the books kept by his father for some years prior to 1876, which entries were made in the handwriting of his father or of his brother, also deceased, who had kept the books for his father previous to 1876; and that these ■entries had been made prior to 1876, the time when witness took -charge of said books. As the elevated railroad was not built in 1876, it is not to be supposed that the witness’ deceased father would have had any motive for falsifying his entries, in contemplation of bringing a suit for loss of rental value against the railroad company. These entries were to a certain extent made against the interest of the party making them, since they were an admission of payment of rent to him by his tenants; they were ■entries made in the ordinary course of business; the matter was, presumably, within the peculiar knowledge of the party making them, and there was apparently no particular motive to pervert the facts. The party is dead, and his entries in his books are offered in evidence. They are entries made by a third person in his own books in the ordinary course of business. We are of opinion that it was not error in the court below to receive them in evidence. See 1 Greenleaf on Evidence, §§ 116 and 120; Brewster v. Doane, 2 Kill, 537; see, also, Jermain v. Denniston, 6 N. Y., 276.

A careful examination of the case of Schuhle v. Cunningham, 54 N. Y. Super. Ct., 302; 8 St. Rep., 96, relied upon by defendants’ counsel as authority for his contention, discloses a difference that renders it inapplicable to the case uat bar. In that case it did not appear that the entry of the deceased physician, sought to be put in evidence, was of a character usually made in the course of professional duty or in the ordinary course of business of a physician ; nor was there anything in the entry or any extraneous proof to show when it was made. In its opinion, the court, Sedgwick, Ch. J., said : “ The entry did not disclose when it was made. Indeed, part of it indicated that that part was made after the fact referred to was declared to have occurred. Take it altogether, it seems to be a condensed history of observations made in times that had passed.” The court did not hold that the entries were incompetent evidence, but that their admission was error because plaintiff failed to prove all the conditions which the law affixes to entitle them to admission.

There are no other questions presented on this appeal that are of sufficient importance to require discussion.

The judgment and order appealed from are affirmed, with costs.

Freedman and Dügro, JJ., concur.


text:
    The People ex rel. Richard Burns v. Henry D. Purroy et al., Fire Com’rs.

      (New York Superior Court, General Term,

      Filed July 5, 1892.)

    Municipal corporations—Firemen—Dismissal.
    Where the evidence on the trial of charges against a fireman is such as-to warrant the commissioners in finding him guilty thereon, their determination as to the nature and extent of the punishment within the limits-of the statute is not reviewable.
    Hearing on return to writ of certiorari.

      Louis J. Grant, for relator; William L. Findley, for resp’ts.
   Gildersleeve, J.

The relator was a member of the fire department of the city of New York. Charges were preferred against, him of committing two separate assaults on a 'superior officer, when called to duty by said superior officer, at the quarters of engine company twenty-nine, on August 4, 1891. He was tried before the board of fire commissioners, found guilty, and dismissed from the force.

If the relator was guilty of the misconduct charged against him, the respondents had jurisdiction to make the order dismissing him from the force. Consolidation act, § 440. As far as the evidence shows, they complied with all the formalities required by the statute. The inquiry was before the board of commissioners ; the charges were in writing; the exámination was public; the accused had due notice thereof, and was present, and took part in the investigation; and the trial was conducted in a fair and impartial manner. § 440, supra. That the two men, relator and his said superior officer, fought at the quarters of engine company twenty-nine, when the former was ordered by the latter to duty, is not disputed; but each claims that the other was the aggressor. The relator was found guilty of a charge which clearly amounted to a “breach of discipline” and “conduct injurious to the public-peace and welfare,” for which, under § 440 of the consolidation act, he could be dismissed from the force. The preponderance of evidence indicates that the relator was guilty of an act of insubordination and breach of discipline that was not justified by the circumstances of the case, and sustains the conclusions of the commissioners as to his guilt.

If the board of commissioners were warranted in finding the relator guilty, as we think is the fact, their were authorized to determine the nature and extent of the punishment within the limits of the statute, and that determination is not reviewable here. The provisions of § 2141 of the Code of Civil Procedure, authorizing the court, upon a hearing on return to a writ o£ certiorari, “ to make a final order annulling or confirming wholly or partly, or modifying, the determination reviewed,” do not authorize the review or modification of the determination of inferior jurisdictions in matters within their jurisdiction which are confided to their discretion. People ex rel. Kent v. Board of Fire Com'rs, etc., 100 N. Y., 82.

And if it were within our power to modify the mode of punishment, we should be very cautious in exercising that .power. The government of the fire department assimilates to that required in the control of the police force, or in the control of a military body, and the interference of an extraneous power in its practical control and direction must, as a general rule, be mischievous and destructive of the discipline and habits of obedience which should govern its subordinate members. People ex rel. Masterson v. French, 18 St. Rep., 234.

"We are of opinion that the writ must be dismissed and the judgment of the board of fire commissioners affirmed, with fifty dollars costs and disbursements.

Freedman and Dug-ro, JJ., concur.


author: Hatch, J.

text:
    Valda M. Canfield, Resp’t, v. The New York Central & Hudson River Railroad Co., App’lt.

      (Superior Court of Buffalo, General Term,

      Filed July 8, 1892.)

    ¡Negligence—Contributory.
    Plaintiff attempted to cross defendant’s tracks while driving in a covered wagon. There were six tracks at that point; two of the West Shore road; two of defendant’s, and two of the Lake Shore. It was a windy day, and there were box cars on the first West Shore track which came to the curbstone, and an engine on one of the Lake Shore tracks which was steamed up. Plaintiff testified that he looked for a flagman and to the west, but saw nothing but said engine; that he looked to the east as he passed the box cars, but his vision was obscured by smoke which came down by said cars, and he saw no engine and heard no signal until his horse was on defendant’s track, and that he was unable to pull him off before he was struck by an engine. A surveyor testified from measurements that at the south rail of the track with the cars one could see 134 feet to the east, and a short distance further 2,000 feet. Meld, that this did not conclusively establish that plaintiff was negligent in not seeing the same distance under the circumstances which surrounded him, and that the question was properly submitted to the jury.
    Appeal from a judgment in favor of plaintiff, entered upon a verdict of a jury, and from an order denying a motion for a new . trial made upon a case and exceptions.

      James F. Gluck, for app’lt; John Laughlin, for resp’t.
   Hatch, J.

It is not urged upon our attention that the evidence offered was not sufficient to authorize the court to submit and the jury to find negligence upon the part of defendant in the management and operation of its train at the place where the injury was inflicted, and as we think the evidence sufficient upon that question, it may be dismissed from consideration. The serious claim in this case is that upon the undisputed facts the plaintiff is shown to have been guilty of contributory negligence through which he suffered the injury complained of. The evidence of plaintiff authorized the jury to find that plaintiff was familiar with the crossing where he was injured; that upon the day in question he was driving southerly upon Fillmore avenue,, with a one-horse covered wagon; that his seat was about two feet from the horse, and the covered portions of the wagon projected beyond the seat, in a measure obstructing the view upon either side. At the place of injury the street is crossed by six tracks'; going so'uth the first to be reached is two branch tracks of the West Shore Railroad, controlled by defendant, next two main tracks of defendant, next two main tracks of the Lake Shore Railroad. Upon the second branch track of the West Shore Road there were standing some box cars which came close up even with the curb stone of the street and extended back some distance, cutting off the view of defendant’s tracks to the east. Upon the southerly track of the Lake Shore Road there stood a train with an engine attached which was steamed up, and upon which were two men. There was a strong wind blowing hard from the west. Plaintiff’s horse was struck by a train propelled upon the first track of defendant at a high rate of speed and produced the injury complained of.

Plaintiff testified that as he approached the track he looked for the flagman, whom he knew was stationed there, but he was not upon the crossing and was not visible; he further states that he looked to the west, saw the Lake Shore engine but saw no other train; that as he passed the box cars he looked to the- east, but his vision was somewhat obstructed by smoke which came down by the side of the cars; that he saw no engine and heard no signal of an approaching train until an instant afte'r passing the box cars, and when his horse was upon defendant’s track, when he attempted to pull his horse from the track, but was unable to do so before it was struck; that from the time he reached the first tracks his horse was driven upon a fast walk. Nearly all of these propositions were sharply controverted by the defendant, but we think they were all proper questions for the jury, and its finding thereon must govern.

The street at this point runs in a southeasterly and northwesterly direction, while defendant’s tracks cross about due east and west. The track upon which the box cars stood curves to the south as it reaches the street and to the north as it leaves it, thus making the distance from that track to the track upon which plaintiff was struck a number of feet closer upon the easterly side of the street, gradually lengthening the distance to the westerly side. It appeared by the testimony of a civil engineer called by defendant, and was not disputed, that the distance from the track upon which plaintiff was struck, in the centre of the street, was twenty-eight feet, gradually decreasing to twenty-three feet at the easterly curb-line of the street; that standing.upon the southerly rail of the track'with cars on he could see defendant’s main track upon which the train came 208 feet, and making allowance for the projection of the car over the line of the rail he could see 134 feet; five feet further south he could see 384 feet, and at ten feet could see 2,000 feet, no obstructions This witness also measured horses and wagons similar to that driven by plaintiff and found them to be about sixteen feet nine inches in length; this distance divided showed the horse about seven feet; the space between the horse and wagon one foot two inches, and the wagon eight feet three inches. Defendant claims that this testimony undisputed conclusively establishes that plaintiff could not have looked, for if he had he would have seen the train in time to avoid it, or if he looked he must have seen the train and attempted to cross in front of it, either alternative of which is fatal to plaintiff’s recovery. 1 am unable to agree with this contention.

The plaintiff testified that he was driving about the centre, a little east of it; if he was in the centre of the street and he looked the moment he passed the line of cars, ins horse would have been within from twelve feet nine inches to nineteen feet nine inches of the track upon which the train was coming; assuming that there was nothing to obstruct his vision, and that he looked without any confusion of sense or influenced by the conditions which surrounded him, if his horse was any longer than the one measured, or the space between it and the wagon further, he would have been still closer to the track; of these things we do not certainly know. Plaintiff was required to be alive and vigilant; he must protect himself from the west; he must see that the engine upon the track, which was steamed up, over which he must cross, did not move and thus leave him in a dangerous position between the tracks, as the tracks of all the roads were close together; he must look to the east also and protect himself from danger in that direction. This condition at the crossing was of defendant’s creation; it was a “ nasty ” day, a strong wind was blowing, tending to carry in an opposite direction the noise of the approaching train ; there is evidence of smoke obscuring the vision before the horse was struck; how long before does not appear. Does, the fact that a skilled engineer making measurements and taking observations for the single purpose of seeing how far away the train was visible, and uninfluenced by other considerations, conclusively establish that plaintiff was negligent because he did not see the same distance at the time and under the conditions which surrounded him, or did not see the train in time to stop his horse- and avoid it. This was all done, not in hours or minutes, but in the fraction of a minute; doubtless it took the engineer under-favorable conditions many minutes to verify his testimony, and it may be safely assumed that plaintiff adopting the same methods and trying to arrive of the same results would come to the same conclusions, but that is not the test; the test is, did he do other or different from what an ordinarily prudent person would have done under the circumstances. The position of defendant is conclusively answered by the case of Massoth v. D. & H. C. Co., 64 N. Y., 524, where the facts were much weaker than are here presented. We do not understand that this case as an authority has been shaken; on the contrary it has been cited with approval many times. Greany v. Long Island R. R. Co., 101 N. Y., 419; Salter v. U. &. B. R. R. R. Co., 88 id., 42.

Rot only is this case cited with approval, but the doctrine announced in the cases themselves are authorities to support the proposition here advanced. Startz v. Railroad Co., 42 St. Rep., 457.

We think no error was committed in submitting this case to the jury, and that the judgment and order appealed from should be affirmed.

White, J., concurs ; Titus, Ch. J., did not sit.


author: Titus, Ch. J.

text:
    John Neeson et al., App’lts, v. Elizabeth C. Bray et al., Resp’ts.

      (Superior Court of Buffalo, General Term,

      Filed July 8, 1892.)

    Deed—Covenant—Laws 1850, ch. 116.
    Defendants conveyed to plaintiffs certain land on Prospect Avenue by deed describing said avenue as four rods wide. On attempting to build on the front line, plaintiffs were stopped by the authorities. In an action for breach of the covenant of quiet enjoyment in the deed, it appeared that said avenue was laid out ninety-nine feet wide, but by chap. 116, Laws 1850, the authorities were authorized to consent to the use by owners or occupants of lands on said avenue of sixteen and ahalf feet in front thereof as court yards, but not for the erection of buildings thereon. Held, that such .act was a public act, and that a party purchasing land is presumed to have knowledge thereof, and to have purchased in view of it, and that plaintiffs were not entitled to recover.
    Appeal from judgment in favor of defendants.
    Laughlin, Ewell & Howpt, for app’lts; John M. Chipman, for resp’ts.
   Titus, Ch. J.

This action is brought to recover damages for a breach of the covenant of quiet and peaceable possession of a deed given by the defendants to the plaintiffs of premises situated on the southeast corner of Prospect Avenue and Massachusetts streets, in this city.

On the 25th day of February, 1887, the defendants conveyed to the plaintiffs, by deed containing a covenant of quiet and peace.able possession, a lot of land described as being fifty-six and one-half feet on Prospect Avenue, and one hundred and sixteen and ■one half feet on Massachusetts street, each of said streets being referred to as a four rod street. The plaintiff commenced to make ■excavations on the line of Prospect Avenue as a four rod street, for the purpose of erecting a building, and while his employees were engaged in digging for the foundation walls he was forbidden by the city authorities to build on the sixteen and one-half feet of the Prospect Avenue front, and was ordered to place his building back on the line of the street as a ninety-nine feet street. Police officers were sent upon the ground, and the plaintiff was threatened with arrest if he persisted in going on with his building.

It appears that Prospect avenue (formerly Ninth street) and Massachusetts street were originally laid out ninety-nine feet wide. The legislature, in 1850, passed an act, chapter 116, extending the lot lines of all lots fronting on streets crossing Niagara street at right angles sixteen and one-half feet toward the center of such streets, so that such streets should be contracted from their then present width of ninety-nine feet to sixty-six feet. The lots lying ■on each side of such streets so contracted in width were extended and bounded upon the lines of the streets so altered. By the .third section of the act it was provided “ that it shall be lawful for the common council of the city of Buffalo and for the board of trustees of the village of Black Bock, in respect to the lands lying within their corporate limits, respectively, to authorize and direct the owners and occupants of any lands lying within the said south village of Black Rock, and fronting upon Seventh or Ninth street (now Prospect avenue), to enclose and cultivate as-ornamental or court-yards sixteen and one-half feet of such portions of said street as bound said lots in front of the same. Provided. however, it shall not be lawful to erect any building within the lines of said streets.”

By this act the right of the people in these streets for street purposes was relinquished, but as to streets crossing Niagara street at right angles it was necessary to get the consent of the common council of the city of Buffalo, or of the trustees of the village of Black Rock, to extend the lot lines as contemplated by the act, and as to lands lying on Seventh street and Prospect avenue the common council of the city of Buffalo and the trustees of the village of Black Rock were empowered to authorize the owners of lands fronting upon these streets located within their respective corporation limits to enclose and cultivate as ornamental courtyards the sixteen and one-half feet of such streets immediately in-front of their lands, but the municipal authorities could not authorize the erection of any buildings on the sixteen and one-half feet.

In 1869, chapter 741, the legislature amended this act in some-particulars not affecting the questions under consideration, and further enacted that the interests of the people of this state be released to the owners in the sixteen and one-half feet on each side-of the streets crossing Niagara street at right angles in the south village of Black Rock, excepting the lots fronting on Georgia street, thus narrowing the streets to sixty-six feet in width, and vesting the absolute' title to the sixteen and one-half feet in abutting lot owners, so that now the only streets which are subject to the condition of the qualified ownership are Seventh street and Prospect avenue, and so much of the land described in the deed as fronts on Massachusetts street was conveyed to the plaintiff by a good and absolute title.

The question then is, what is the effect of the covenant of quiet and peaceable possession contained in the deed upon the strip sixteen and one-half feet wide on Prospect avenue ?

If this was an action for fraud in the sale of land, different questions might arise, but the action is fora breach of the covenant in the deed, and not in fraud. Wardell v. Davis, 18 Johns., 325; Whitney v. Allaire, 1 N. Y., 305.

The only breach of the covenant complained of is the restriction found in the statute prohibiting the owners from building" upon this sixteen and one-half feet strip.

The evidence which was rejected by the court 'all related to-representations made by the defendants at the time of the sale, and in the view taken of this case the representations were immaterial, because no fraud is alleged in the transaction, and whether there was a breach of covenant in the deed is not material if we are right in holding that the statute is a public one, ■of which the plaintiff must take notice, because in that case he contracts having in view the fact of the limitation upon the use ■of the property, and. is estopped from claiming a right to recover for a defect in the title of which he had knowledge. Bennett v. Buchan, 76 N. Y., 386.

It is claimed by the plaintiff that these acts are private and not public acts, and that if they are private acts parties are not bound to take notice of them.

It has been said that a public act is one which relates to the state at large, and a private act to certain individuals or a particular class of men. It operates upon a particular thing or private person. It does not bind strangers in interest to its provisions, and they are not bound to take notice of it. 1 Kent’s Com., 459.

But the rule with reference to public acts is that all persons are bound to take notice of them, and are presumed to know them. Van Schoonhoven v. Curley, 86 N. Y., 187; Kent’s Com., 460; Platt v. Crawford, 8 Abb., N. S., 297; Jackson v. Catlin, 2 Johns., 263.

. Private statutes act upon the private affairs of individuals as -distinguished from their attitude or relation to the public; as to such acts the courts and the public are not presumed to know them or to be bound by them, and they must be proved like any ■other fact in a case. Platt v. Crawford, supra; Kent’s Com., 460.

Many cases have arisen in which the question whether the act was public or private has been considered. In one case it was said that an act which relates to persons or things as a class in general is public, but one which relates to particular persons or things of a class is special and private. Matter of N. Y. El. R. R. Co., 70 N. Y., 350.

An act in reference to a single corporation would be a private act, but one affecting all corporations would be public. White v. Syracuse & U. R. Co., 14 Barb., 563.

A statute giving a party the right to erect a dam across a stream is a private statute. There is no presumption that .such statutes are generally known, and courts do not take judicial notice of them. Groat v. Moak, 94 N. Y., 115.

A statute releasing the interest of the state in a certain piece of land is a private statute. Johnston v. Spicer, 107 N. Y., 201; 11 St. Rep., 436.

But it was held that where a road was discontinued by the legislature, that such an act of discontinuance was a public statute, Wheeler v. Clark, 58 N. Y., 267-272; King v. The Mayor, 102 id., 171; 1 St. Rep., 401.

In the latter case it was held that parties dealing with property .affected by such an act were bound to know that a public highway no longer existed, and presumed to have bought and fixed the price of the land in view of that fact.

On a contract for the sale of one hundred barrels of salt it was held that the size of the barrels is understood apd intended to be the size prescribed by the statute, and that the parties were bound to take notice of it. Clark v. Pinney, 7 Cow., 681.

The statute in this case affected a large number of persons owning property on Seventh street and Prospect avenue. It related to a class of persons who were similarly situated. It was of public interest, and it affected the rights of the public in those streets by depriving the public of the use of two rods of land which had heretofore been devoted to the public use, and from the reasoning of the courts m the numerous cases where this question has been under consideration it is concluded that the object and intent of the act of 1850 was and did affect the public interest, and distinguished it from an act which affected private individuals or private rights only.

Such being the case, a party purchasing land is presumed to know of the existence of the law, and to have purchased with the knowledge and in view of it. In the absence of fraud this presumption becomes conclusive upon the purchaser, and he is not permitted to make proof of his want of knowledge. Bank of U. S. v. Davis, 2 Hill, 451; Williamson v. Brown, 15 N. Y., 354; Adams v. Conover, 87 id., 422; Bennett v. Buchan, 76 id., 386; Cam. Bank v. Delano, 48 id., 326.

It is probably true that the limitation of the use of the sixteen and one-half feet of the land described in the deed to the plaintiff to yard and ornamental purposes deprived the plaintiff of a substantial right in the land, and for some purposes diminishes its value, but the law presumes he purchased with knowledge of the facts, and consequently he is estopped from asserting the contrary, and cannot recover in an action for a breach of the covenant of quiet and peaceable possession, although the acts of which he complains may be sufficient to warrant the court in finding that there was in fact a breach of the covenant.

It follows, therefore, if this view of the law is correct, that the judgment should be affirmed, with costs.

White, J., concurs; Hatch, J., not sitting.


text:
    Jacob J. Janeway, Pl’ff., v. Anthony Haft et al., Def’ts.

      (Superior Court of Buffalo, General Term,

      Filed July 8, 1892.)

    Undertaking — Liability of sureties on appeal — Code Civ. Pro., 8 3050.
    The sureties upon an undertaking to stay execution upon appeal under | 8050 of the Code can only be charged with liability where a judgment is rendered against the appellant in the appellate court, and are not liable for a judgment rendered on a new trial in the court below which was ordered by the appellate court.
    Demurrer to complaint.

      Harry D. Williams, for pl’ff; Edward T. Durand, for def’ts.
   Titus, Ch. J.

It appears from the complaint that on the 26th day of February, 1891, the plaintiff recovered a judgment in the municipal court of Buffalo against the defendant for $117.47 damages and $7.00 costs. That the defendant took an appeal from the judgment to the general term of this court. That the court ordered a new trial before the municipal court, and stayed proceedings on the judgment and execution until the determination of that case. The new trial in the court below resulted -in a judgment in favor of. the plaintiff, and against the defendant, for $140.83 damages and costs. An execution was issued on that judgment and returned wholly unsatisfied. The undertaking on the original appeal was given pursuant to § 3050 of the Code of Civil Procedure for the purpose of staying execution pending the appeal. It was conditioned that “ If the appeal is dismissed, or if judgment is rendered against the appellant in the appellate court, and an execution issued thereupon is returned wholly or partly unsatisfied, we, the said surety,' will pay the amount of the judgment, or the portion thereof remaining unsatisfied, not exceeding the sum of $250.”

This in substance is the language of § 3050 of the Code, and it is now claimed by the plaintiff that the condition of the undertaking has become operative by reason of his failure to collect the judgment obtained on the trial in the court below.

Under § 356 of the old Code, the condition of the undertaking required to stay execution was to the effect that if judgment be rendered against the appellant, and execution thereon be returned unsatisfied in whole or in part, the sureties will pay the amount unsatisfied.”

It has been held under this section, where the facts were quite similar to the case before ug, that the sureties were liable for the judgment obtained in the court below whenever the condition became operative by reason of a failure to reverse the judgment. Lowry v. Tew, 25 Hun, 257.

In Humerton v. Hay, 65 N. Y., 380, an undertaking was given on appeal from the justice’s court for a new trial in the appellate court, and a judgment was finally rendered in the appellate court against the appellant. It was held in an action on the undertaking given to stay the execution that this section of the Code had reference to the judgment obtained in the appellate court, and the plaintiff was allowed to recover.

In Smith v. Crouse, 24 Barb., 433, where the defendant in a justice’s court judgment gave an undertaking to stay execution pursuant to § 356 of the the old Code, pending an appeal to the county court, where the judgment was reversed, and oil appeal to the supreme court the judgment of the county court was reversed and that of the justice affirmed, it was held that the sureties were liable on the undertaking for the whole judgment, including costs in the supreme court, the court saying that the language of the undertaking was broad enough to cover the judgment in the supreme court, not being limited in phraseology to the county court.

In Garaner v. Barney, 24 How., 467, an appeal was taken to the general term from the judgment of the special term and that court reversed the special term, and-on appeal to the court of appeals that court reversed the general term. It was held that the-sureties in an undertaking given pursuant to § 335 were liable-for the costs to the court of appeals. That the affirmance spoken of in the undertaking is an affirmance of any legally constituted tribunal having cognizance of the subject of the litigation.

Robinson v. Plimpton, 25 N. Y., 484, was an action on an undertaking given on appeal from the judgment of the special term under § 385 of the old Code, where the judgment of the special term was reversed, and on appeal to the court of appeals the judgment of the general term was reversed and that of the special term affirmed. It was held that the sureties on the undertaking given on appeal from the special term were liable. That it was within the language of the Code and of the undertaking.

These cases seem to turn upon the language of the statute and of the undertaking, and all recognize the fact that the language used does not limit the liability of the surety to the judgment of the court to which the appeal is taken. It will be observed that § 3050 does not follow the general language of §356 of the old Code, that if judgment is rendered against the appellant and execution thereon returned unsatisfied,” etc., but places a limitation upon the liability of the sureties, “ If the appeal is dismissed or if judgment is rendered against the appellant in the appellate court and execution issued thereupon is returned ” unsatisfied, etc.

To charge the sureties with liability under this section, there must be a judgment rendered against the appellant in the appellate court. Can it be said a judgment was rendered against the appellant in this court on the appeal ? In case of no appearance of the defendant in the municipal court and a judgment taken against him by default, he may apply to that court, and it has power to open the default and allow him to come in and defend, and if a transcript has been filed, he may apply to the special term of this court, and it may open the default and order a new trial in the municipal court upon such terms as may be just; or he may appeal under the Code and stay judgment, and the court may, on such appeal, stay or set aside the judgment and order a new trial in the court below, as was done in this case.

Can it be said that such an order is a judgment ? Ho execution was issued against the appellant on a judgment rendered against him in the appellate court. The judgment which the plaintiff now seeks to enforce is a judgment given on a new trial in the court below, and by the terms of the undertaking the sureties agreed to pay the judgment rendered in the appellate court, thus limiting their liability to the judgment rendered in this court.

Since § 8050 of the Code of Civil Procedure is a re-enactment ■of § 856 of the old Code, the change which limits the liability of the surety to a judgment rendered in the appellate court is significant, and some evidence that the revisers intended what the language -seems to indicate they did, having in view the fact that the courts had practically extended the liability of the sureties to the payment of the debt whenever it should be finally determined against the appellant in any court.

In tire absence of any authority enlarging the liability of the surety under the execution, so as to charge him upon the facts in this case, I think the court should follow the plain reading of the statute. If this is done, the sureties are not liable and the demurrer should be sustained.

Hatch and White, JJ., concur.


text:
    John F. Zahm, Resp’t, v. Emilie F. Dopp, App’lt.

      (Superior Court of Buffalo, General Term,

      Filed July 8, 1892.)

    1. Ejectment—Title— Common qbantob.
    One B., in 1863, conveyed certain premises to defendant. In 1869 title to adjoining property became vested in B., and lias, by mesne conveyances, vested in plaintiff. The two deeds embrace all the land claimed to be owned by both parties, including the strip in dispute. Held, that as to these parties B. was a common grantor, and that plaintiff was not required to trace his title back of him.
    3. Deed—Champebty.
    Where the grant conveys the whole estate owned by the grantor, and possession is taken thereunder, the fact that a boundary line is in dispute does not constitute an adverse holding within the statute of champerty. To make the statute available, there must not only be an adverse possesiion, but it must be under claim of specific title.
    Action of ejectment.
    Plaintiff obtained a verdict of the jury, upon which judgment was entered, from which defendant appeals.

      Frank F. Williams (George Clinton, of counsel), for app’lt; John G. Cloak, for resp’t.
   Hatch, J.

The undisputed facts in this case are these. By warranty deed, bearing date May 18th, 1863, and recorded May 20th, same year, Henry Baethig and Adelaide, his wife, conveyed to defendant ninety-seven feet front on the southeast side of Thirteenth street commencing 200 feet north of York street as a six rod street. By mesne conveyances thereafter made, H. William Dopp, husband of the defendant, became the owner, and upon his-death he devised to defendant a life interest in the property, with remainder to his children. By warranty deed bearing date July 8th, 1853, recorded September 11th, same year, James Smith and wife conveyed to William A. Chard forty-two feet of land, commencing 297 feet northwest from York street as a six rod street By mesne conveyances, and in June, 1869, title to this property became vested in Henry Baethig, who entered into possession and occupied the same. And the same was thereafter, by mesne conveyances, vested in the plaintiff, before the commencement of this action. Upon these facts, defendant insists that plaintiff proved no title to the land, the point being that if he relied upon record title, it became essential for him to show title in the State, and connect it with plaintiff, or failing in this, prove possession in his grantor, and that as the evidence established neither, the motion for nonsuit should have been granted. The contention between the parties has become narrowed fcpthis, the defendant’s position as stated, and plaintiff’s claim that as both parties derive title from a common grantor (Baethig) he was not required to go back of such title. That the latter claim is the rule is not seriously controverted, and would be ineffectual if it were, but it is insisted that the facts do not establish such condition. An examination shows that the land conveyed by the two deeds embraces all the land now claimed to be owned by both parties, including the strip in dispute, and title to such land, so far as the present parties are concerned, is derived from the common grantor, Henry Baetliig. I am therefore unable to see why the plaintiff has not traced the source of title to a grantor common to both, and thus brought himself within the rule.

It is quite true that defendant is not estopped from showing that she obtained title to the land, and that as against Baetliig or any other person claiming under him, and that she has obtained such title either by her deed, by adverse possession or by a practical location of the line. So plaintiff is not estopped from showing that she has not obtained title from any of these sources, but that he has. This is what the parties did in this case ; they litigated which had the better title to the strip; as to that the jury found for the plaintiff, and such finding is conclusive.

Tracing title to the common grantor becomes sufficient to sustain this verdict, for the reason that it exhibits a better title in plaintiff, to the disputed portion, than the defendant had. I am also of opinion that plaintiff’s evidence authorized the jury to find that his grantor Baetliig had actual possession of the premises, as the location of the fence was one of the questions litigated, and plaintiff’s proof tended to show that it had been moved further onto his land that when first erected. There is nothing in this grant repugnant to the provisions of the Revised Statutes, 4 R. S., 2453, § 147, 8th ed., providing that, “ Every grant of lands shall be absolutely void if at the time of the delivery thereof such lands shall be in the actual possession of any person claiming under title adverse to that of the grantors.” Where the grant conveys the whole estate owned by the grantor, and possession is taken thereunder, the fact that a boundary line is in dispute does not constitute an adverse holding within the statute. Danziger v. Boyd, 120 N. Y., 628; 30 St. Rep., 889.

To make the statute available there must not only be an adverse possession, but it must be under claim of specific title. Crary v. Goodman, 22 N. Y., 170; Allen v. Welch, 18 Hun, 226.

The objections raised to the deeds admitted in evidence, if valid, do not affect the disposition of the case; they relate to deeds between parties prior to those vesting title in Baethig, and, as we have seen, showing title in him as the common grantor is sufficient to support the judgment. If error was committed it becomes immaterial. The judgment is affirmed, with costs.

White, J., concurs; Titus, Ch. J., not sitting.


author: Pryor, J.

text:
    Samuel Malcolm et al., Resp’ts, v. Dore Lyon, App’lt.

      (New York Common Pleas, General Term,

      Filed June 6, 1892.)

    Services—Evidence.
    In an action for work and materials, orders for the same are admissible in evidence where they were issued by the defendant’s agents, or recognized and adopted by him.
    Appeal from judgment of a referee in an action for work, labor and materials.

      L. Laflin Kellogg, for app’lt; Thomas C. Ennever, for resp’ts.
   Pryor, J.

Except as to the partnership of the plaintiffs, the pleadings present no issue for trial. The answer purports to be a genez’al denial; but that denial is coupled with the condition, “ except as qualified by the offer of judgment.” Since the case contains no offer of judgment, it is impossible to perceive the-scope and application of the attempted traverse.

Again, the answer was amended by inserting the paragraph, that “ with the exception of the matters admitted to be due in paragraph second hereof, defendant alleges payment by him of the items set forth in the bill of particulars with the exception of -; ” with this blank how can it be known what payments are alleged ?

Such being the pleadings before us, we should be justified in declining to examine the record; but as the plaintiffs chose,, nevertheless, to pz’oceed with the trial, we shall disregard the defects in the answer, and accept it as sufficient for its .intended purposes.

The very careful opinion of the learned referee presents a satisfactory argument in support of his findings of fact- and conclusions of law; and, in vindication of the judgment, we have but. to expose the futility of the exception to evidence on which appellant relies for reversal.

The error suggested by that exception consists in the admission-of the orders for work; but as, with a few unimportant exceptions, no ground of objection to the evidence was indicated, the-exception is nugatory. Bergmann v. Jones, 94 N. Y., 51.

On the argument the contention was, that it did not appear that defendant had authorized the orders; but the evidence was-distinct and ample that they were issued by his agents, or else-recognized and adopted by himself.

Bearing in mind that the bill of particulars is in evidence, and-recollecting the testimony of the plaintiffs, it is idle to urge that performance of the work was insufficiently proved.

There is no merit in the appeal, and the judgment is affirmed^ with costs.

Bookstaver and Bischoff, JJ., concur.


author: Bookstaver, J.

text:
    Richard Highton et al., Resp’ts, v. Simon Dessau, App’lt.

      (New York Common Pleas, General Term,

      Filed June 6, 1892.)

    1. Mechanic’s lien—Evidence.
    On foreclosure of a mechanic’s lien for mason work, expert evidence to-show that such work does not include plastering and whitewashing is. admissible.
    3. Same—Performance.
    Where it is impossible to perform part of the work until certain work of other contractors is finished, and upon the completion of such other work plaintiff goes prepared to do his work, but finds others engaged in doing it and is ordered ofE the premises by the owner, there is a substantial performance and plaintiff is entitled to recover.
    3. Same.
    Substantial performance is sufficient although a small and unimportant, portion remains to be done, and if completion of the work is prevented by the acts of the owner, the contractor is entitled to recover.

      4. Same — Architect’s certificate.
    Where the architect unreasonably refuses to give a certificate it is not a condition precedent, but a recovery may be had notwithstanding.
    8. Same—Judgment.
    Although a bond was given to secure the lien, the judgment should be entered against the property.
    Appeal from a judgment entered upon the report of a referee in favor of the plaintiffs.

      Leon Lewin, for app’lt; William Irwin, for resp’ts.
   Bookstaver, J.

This action was brought to foreclose a mechanic’s lien. The first question to be considered on this appeal is the one raised by respondent’s counsel as to what was denied in the answer. From a careful examination of the pleadings we are convinced he is wrong in supposing that the second paragraph of the answer, which contains a denial of the fifth and ‘sixth allegations of the complaint, was intended to refer to distinct allegations in the various paragraphs of the complaint, but we think the denial was intended to, and did refer to the paragraphs themselves as numbered and marked therein. So that whether or not the respondents had duly performed the work to be done by them, and whether they had, o.r had not, completed the contract alleged in the complaint so as to become entitled to the fourth payment thereunder, and whether or not they had properly filed their liens, were issues to be tried. But we think the referee was fully justified from the evidence offered in this case in finding as he did in favor of respondents on these issues.

The two principal points raised by the defense were, that the respondents were obliged under their contract to do plastering and whitewashing, and, secondly, that they unreasonably refused to ■complete the elevator shaft, and that some of the work which respondent should have done was done by the appellant after serving notice on the respondents requiring them to do it.

In answer to this the respondents claim that under their con' tract they were not bound to do the plastering and whitewashing, and therefore did not do it. In order to show this they produced, as they had the right to do, Cassidy v. Fontham, 38 St. Rep., 177, witnesses, experts in the trade,'to show that mason work did not include plastering and whitewashing, and this^ testimony ^ the appellant did not satisfactorily overcome. Besides, we think, the contract itself shows that whitewashing and plastering was not intended to be included therein, because the seventh paragraph of the contract states that “ the parties of tile second part agree to keep all the sand required for the mason work and plaster on the premises,” thus making a clear distinction between the two. It follows, therefore, that the notice served upon the plaintiffs in regard to doing this work was of no consequence, as they were not bound to do it in any event.

As to the second contention, that the respondents unreasonably refused to complete the elevator shaft after notice, we think the referee also was correct. From the testimony it is very clear that some two or three weeks before it was possible to lay this fire-proof brick in the elevator shaft, the respondents had hoisted thé brick from the ground floor and placed it in position on the several floors of the building ready for laying when the shaft was ready for the work. It was not possible to lay these brick until the skeleton of the shaft, which was .composed of iron and was being erected by other contractors, was in place; and this iron could not be set up until the brick foundation of the shaft was completed. It appears by the testimony of several witnesses, and as far as we have been able to see was not contradicted by appellant, that the iron work of the elevator shaft, which had to be set in place, was not completed until the 24th of April, 1890. There is a good deal of conflict as to when the notice-was served, if at all; the appellant’s witness at first stating that it was on the 20th of April, but when it appeared that that was-on a Sunday, stated that it w'as afterwards. The respondents’ contention is that the notice was not served at all, and also that, on the 25th day of April, they, or one of them, went to make arrangements for the work, saw Mr. Schneider, one of the appellant’s architects, who promised to mail him a sketch of the-shaft that evening, as the original design had been changed; but this he did not do.

On the morning of the 26th of April respondents went to the-building prepared to do their work, when they found that the appellant had put other men at it and ordered them off. Even if the notice was served at all, it cannot avail the appellant, as it. was served when it was impossible to proceed with the work,, and the respondents used all diligence in going on with the work after it was possible to do so.

There was a good deal of dispute as to what was contained in the specifications, which were referred to in the contract, but it is. admitted that none were signed by either party, and the respondents swore that the specifications they saw they got from the architect, and they contained the whole work of-the building, and that, they were directed to estimate only on the mason work. In this they are to some extent confirmed by the appellant himself and the witness William Shefton.

According to the terms of the contract the fourth payment was to be made when the mason work was completed ; consequently the only question in this case was' whether or not this work was completed at the time the fourth payment was demanded and refused. As before shown, the mason work required by the contract was all done as far as the appellant permitted the respondents to do so, and we think the respondents were entitled to the-full amount of that payment.

There were several small amounts in the bill of particulars concerning the cleaning of the cellar and removing of dirt, etc., therefrom. It may be quite possible that all of this work was-not done by the respondents whemthey claimed the fourth payment, but as there was to be a fifth and final payment thirty days-after the completion of the building, it is in our judgment immaterial whether or not this rubbish was removed, at the time, as-they had ample opportunity to do so afterwards, and there is no proof but that they would have done it had the payment been made. Substantial performance is sufficient although a-small and unimportant portion remained undone, Flaherty v. Miner, 33 St. Rep., 683; Hollister v. Mott, 32 id., 743, and if the respondents were prevented by the acts of the appellant from the completion of the work, they were entitled to recover the full amount of the fourth payment Stewart v. Keteltas, 36 N. Y., 388; Jenks v. Robertson, 58 id., 621; Leslie v. Knickerbocker L. Ins. Co., 63 id., 27; Kingsley v. City of Brooklyn, 78 id., 200.

The item of $7.75 for a coal chute, and the other claims made by appellant, were properly disallowed, as the contract did not call for the respondents’ making them.

Appellant also claims that the judgment should be reversed because the respondents did not procure the architect’s certificate, as required by the contract; but from the evidence it appears that the architect refused to give the certificate because the plastering had not been done, and for this reason only, and, as before shown, the respondents were not bound to do this. Therefore it was improperly withheld, and where an architect’s certificate is demanded and unreasonably refused, it is not a condition precedent, but there can be a recovery notwithstanding. Thomas v. Fleury, 26 N. Y., 33-34; Bowery Natl Bk. v. Mayor, 63 id., 339; Nolan v. Whitney, 88 id., 650; Smith v. Alker, 102 id., 90; Doll v. Noble, 116 id., 232-233; 26 St. Rep., 629; Flaherty v. Miner, 33 id., 684; Thomas v. Stewart, 43 id., 881.

Although a bond was given to secure respondents’ lien, the judgment was correctly entered as against the property, and is the only form in which one can be entered under the mechanics’ lien act. Copley v. Hay, 34 St. Rep., 771.

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

Bischoff and Pryor, JJ., concur.