author: Follett, Ch. J. Bradley, J.

text:
    John Hardman et al., App’lts, v. Henry W. Sage et al., Resp’ts

      (Court of Appeals, Second Division,

      Filed January 14, 1891.)

    1. Manufacturing companies—Liability of shareholders under Laws 1848, chap. 40, §§ 10, 24.
    The year within which an action must he begun for the recovery of a debt due by a manufacturing corporation, so as to lay a foundation for a recovery against a stockhoider on account of failure to make certificate of payment of capital, begins to run on the day when the debt first became due, and if the time of its payment is extended by a promissory note, which is sued within a year from the date of its maturity, but more than a year after the date when the debt for which it was first given became due, and a judgment is recovered, and an execution returned unsatisfied, it is not a compliance with the 24th section, and stockholders cannot be charged with the payment of the debt.
    2. Same.
    The object of the section is to protect persons who credit manufacturing corporations for not longer than twelve months. Those who, in the first instance, give more than a year’s credit, are expressly excluded from the benefit of the section, and those who, by successive extensions, lengthen the period of credit beyond one year, are not within the letter or spirit of the statute. Bjr extending the time for the payment of a debt due from such a corporation, by one or by several contracts, the creditor loses his claim upon the shareholders under the tenth section.
    Appeal from an. order of the general term of the supreme court of the first judicial 'department, reversing a judgment entered on the report of a referee.

      Joseph Ullman, for app’lts; Thomas G. Shearman, for resp’ts.
   Follett, Ch. J.

This action was begun to recover from shareholders in the Ithaca Organ & Piano Company the amount due on four notes made by it, and the amount due on the note of a third person endorsed by the corporation, on the ground that the following section of the manufacturing act had not been complied with:

“ Section 10. All the stockholders of every company incorporated under this act shall be severally individually liable to the creditors of the company in which they are stockholders, to an amount equal to the amount of stock held by them respectively, for all debts and contracts made by such company, until the whole amount of capital stock fixed and limited by such company shall have been paid in, and a certificate thereof shall have Been made and recorded as prescriBed in the following (eleventh) section.”

May 19,1877, The Ithaca Organ Company was duly incorporated under chapter 40 of the Laws of 1848, with a capital stock of $25,000, divided into 500 shares of $50 each, the affairs of which were to be managed by four trustees. Ho certificate stating the amount of the capital fixed and paid in was signed, sworn to and recorded, as required by the eleventh section of the act. October 4, 1880, the capital stock was increased to $125,000, the defendants, under their firm name of H. W. Sage & Co., then becoming the owners of 400 shares of the new stock. Sixty-two thousand five hundred dollars of the increase was paid in in cash, and the remainder, $37,500, by capitalizing the surplus earnings of the corporation. January 10, 1882, a certificate was recorded in the office of the clerk of the proper county, of which the following is a copy:

“ Ithaca, H. Y., January 9, 1882.
To the Cleric of the County of Tompkins:
“ This is to certify that the capital stock of The Ithaca Organ Company, limited, and fixed in the sum one hundred and twenty-five thousand dollars, was fully paid in on the 3rd of January, 1882.
“ Wm. L. Bostwick,
President and Trustee.
“P. F. Sisson, “ H Wegman, Trustees.”
ss.: “ State of Hew York, ' “ Tompkins County.
“ On tBis 10th day of January, 1882, appeared before me, Wm. L. Bostwick, P. F. Sisson and H. Wegman, personally known to me, and each acknowledged for himself that the statement above was true, to the best of his knowledge and belief.
“William C. King,
" Notary Public.”

On the 13th of March, 1882, the name of the corporation was changed from “ The Ithaca Organ Company ” to “ The Ithaca Organ & Piano Company.” On the 2d of January, 1883, the capital stock was again increased to $215,000, the defendants under their firm name becoming the owners of 272 shares. The increase, $90,000, was paid in partly in cash and partly by capitalizing the then existing surplus of the corporation. January 3, 1883, a certificate was made and recorded in the office of the clerk of the proper county, of which the following is a copy:

To the Clerk of the County of Tompkins:
This is to certify that the capital stock of The Ithaca Organ & Piano Company is limited and fixed in the sum of two hundred and fifteen thousand dollars, and was fully paid in on January 2,. 1883.
a it u William L. Bostwick, President. William H. Sage, ) m , „ P. F. Sisson ') Trustees.
“ State of New York, ) “ Tompkins County. j ' ‘
“On this 3d January, 1883,.appeared before me, William Bostwick, P. F. Sisson and W. H. Sage, personally known to me,, and each stated for himself that he executed the above instrument
“William 0. King,
“ Notary Public.”

Section 11 of the act provides:

“ Sec. 11. The president and a majority of the trustees, within thirty days after the payment of the last instalment of the capital stock so fixed and limited by the company, shall make a certificate stating the amount of the capital so fixed and paid in, which certificate shall be signed and sworn to by the president and a majority of the trustees; and they shall, within the said thirty days, record the same in the office of the county clerk of the county wherein the business of the said company is carried on.”

The certificates above quoted not having been sworn to, but simply acknowledged, were not a compliance with the eleventh section, Brown v. Smith, 13 Hun, 408; aff’d 80 N. Y., 650, and the liability of the owners of the new shares for the debts of the corporation under § 10 was not terminated. Veeder v. Mudgett, 95 N. Y., 295.

Was a judgment and an unsatisfied execution in an action begun against the corporation within one year after the debt became due, for its recovery, necessary, under the circumstances of this case, to enable the plaintiffs to maintain this action ?

The twenty-fourth section of the act provides:

“Sec. 24. No stockholder shall be personally liable for the payment of any debt contracted by any company formed under this act which is not to be paid within one year from the time the debt is contracted, nor unless a suit for the collection of such debt shall be brought against such company within one year after the debt shall become due; and no suit shall be brought against any stockholder * * * until an execution against the company shall have been returned unsatisfied in whole or in part.”

On the 24th of January, 1885, a final judgment dissolving the corporation was entered in an action brought by the people pursuant to art. 1 of tit. 2 of chap. 15 of the Code of Civil Procedure, which rendered it impossible for the plaintiffs to recover a judgment and have an execution returned unsatisfied pursuant to the last quoted section, by reason of which fact they became entitled to maintain this action for the recovery of any debt which, within the meaning of that section, fell due during the preceding year,, without first obtaining a judgment against the corporation and having an execution returned unsatisfied. Shellington v. Howland, 67 Barb., 14, affirmed 53 N. Y., 371; Kincaid v. Dwinelle, 5 J. & S., 326, affirmed 59 N. Y., 548.

The case last cited arose out of the following facts: An action was brought against a corporation by a judgment creditor pursuant to §§ 36 and 37 of art 2, tit. 4, chap. ■ 8, part III. of the Revised Statutes, in which a receiver was appointed on the 24th of April, 1886, with the powers conferred by the Revised Statutes, by ch. 71 of the Laws of 1852, and by ch. 403 of the Laws of 1860.

On the 11th of December, 1866, a judgment was recovered for wages earned during the preceding year, on which an execution was returned unsatisfied; and in April, 1877, Kincaid began an action under § 18 of chap. 40, Laws of 1848, to recover the amount of the judgment from Dwindle, a shareholder.

It did not appear that a final judgment dissolving the corporation had been entered, but it was insisted in behalf of the defendant shareholder that by the appointment of a receiver the corporation was dissolved, and could not thereafter sue or be sued, and that the judgment of December 11, 1866, having been entered in an action begun after the receivership, was a nullity. It was said b-y Allen, J., speaking for a unanimous court, “ If the position of the appellant, that the Hew York Silk Manufacturing Company was ipso facto dissolved by the appointment of a receiver in April, 1866, and was not thereafter capable of suing and being sued as a corporation, is well taken, it would seem to follow that the condition- precedent to an action against a stockholder, that there must be an unsatisfied judgment against the corporation, having become impossible of performance by the act and operation of law, is no longer of force, and the creditor has his action at once against the stockholders, without the necessity of an attempt first to recover the debt of the corporation. Shellington v. Howland, 53 H, Y., 371. The proceeding against the corporation is only required for the benefit of the stockholders, as a part of the immunity against a primary personal liability vouchsafed by law to corporators shielding them from action until a bona fide attempt has been made and exhausted to obtain payment from the corporate property.

“ The judgment against the corporation is of no virtue or effect in the action against the stockholder, and is only evidence as proving the performance of the condition precedent. If, therefore, the judgment was valid the condition was performed; if it was a nullity, because there was no corporation in existence after the appointment of the receiver, the condition was impossible of performance and was of no force, and the right of the plaintiff to his action was perfect Any other rule would give to stockholders of corporations laboring under pecuniary embarrassments a very easy way of escape from statutory liabilities, and would make the security intended by the personal liability clause of the act for the formation of manufacturing corporations, chap. 40 of Laws of 1848, for services performed for the corporation by laborers, servants and apprentices, a sham and a cheat rather than a substantial benefit.”

The Ithaca Organ .& Piano Company having been dissolved this case falls within the reasoning of the one last cited.

In Flash v. Conn, 109 U. S., 371, which arose under the manufacturing act, it was held that when a corporation had been adjudicated a bankrupt that it was unnecessary for a creditor to obtain a judgment before bringing his action to charge a shareholder under the tenth section of the act, which seems to conflict with Birmingham Nat'l Bank v. Mosser, 14 Hun, 605.

Handy v. Draper, 89 N. Y., 335, and Rocky Mountain Nat'l Bank v. Bliss, id., 338, are not in conflict with Shellington v. Howland or Kincaids. Dwinelle, for in those cases no reason existed for not recovering judgments against the corporations. In Cuykendall v. Corning, 88 N. Y., 129, it was said: “ The further facts must be alleged which are essential under the act of 1848 to disclose a right of action against the stockholders, viz. : that the capital was not paid • in, that the debt for which the stockholder is sought to be charged was a contract debt and was contracted to be paid within one year, that an action was brought against the company within one year, that judgment was recovered thereon and execution returned unsatisfied. Or if, under the doctrine of the cases of Shellington v. Howland, 53 N. Y., 374, and Kincaid v. Dwinelle, 59 id., 551, the condition of recovering a judgment had been rendered impossible by the act-of the defendant or the act of law that fact must be shown.” Page 137.

Was this action begun within one yéar after the debts sought to be recovered by it became due within the meaning of the twenty-fourth section?

On various dates between June 16 and October 4, 1883, the plaintiffs sold and delivered to The Ithaca Organ & Piano Company thirty-nine pianos for $7,540.50 under a written contract providing that “settlement to be made within ninety days from average date of shipments either by cash or sixty days note with interest” August 7, 1883, was the average date of the payments. (Folio 59, app’lts brief, page 7 ; resp’ts brief, page 3.) November 5, 1883, the $7,540.50 was payable in cash or by note, but before that date the corporation settled the account by giving four notes running four months of the dates and for the amounts following: September 28, 1883, $3,000, due January 31, 1884; October 10, 1883, $1,530.74, due February 13, 1884; November 1, 1883, §2,205, due March 4, 1884; November 1,1883, $1,000, due March‘4, 1884.

The difference, $195.24, between the price of the pianos and the amount of these notes, was the interest added pursuant to the contract.

The note for $1,000 was paid in cash, but the others were taken up partly by cash and partly by new notes made by the corporation, which were also taken up partly by cash and partly by like new notes, and they in turn were taken up in the same way until the following were given, on which this action was brought:

October 1, 1884. $1,586.20, due February 4, 1885; November 24, 1884, $500, due December 29,. 1884; November 24, 1884, $1,000, due January 5, 1885 ; December, 4, 1884, $1,530.74, due April 7, 1885.

The year within which an action must be begun for the recovery of a debt owing by a manufacturing corporation, so as to lay a foundation for a recovery against a stockholder, begins to run on the day when the debt first became due, and if the time of its payment is extended by a promissory note which issued within a year from the date of its maturity, but more than a year after the date when the debt for which it was given first became due, and a judgment is recovered and an execution returned unsatisfied, it is not a compliance with the section quoted, and stockholders cannot be charged with the payment of the debt. Parrott v. Colby, 6 Hun, 55; affirmed, 71 N. Y., 597; The Jagger Iron Co. v. Walker, 76 N. Y., 521; Parrott v. Sawyer, 22 Hun, 611; affirmed, 87 N.Y., 622; S. C., 13 N. Y. Wk. Dig., 317.

It is sought to distinguish the cases cited from the one in hand, because in the latter the date when the purchase price of the pianos should become payable in money was not definitely fixed until the four notes were given, as the average date of all the shipments changed with every successive sale under the contract, and that before November 5, 1883 (the date when the price of all the pianos was payable in cash), the notes were given which were dishonored within the year preceding the date of the dissolution of the corporation.

We think the case in hand is not distinguishable in principle from those cited. By the terms of the contract, and the action of the parties under it, the original debt became due November 5, 1883, and the extension before that date of the time in which it might be paid had the same effect on the rights of the creditor, the corporation and its shareholders as though the extension had been made at or after the maturity of the debt.- The object of the section is to protect persons who credit manufacturing corporations for not longer than twelve months. Those who in the first instance give more than a year’s credit are expressly excluded from the benefit of the section, and we cannot see that those who by successive extensions lengthen the period of credit beyond one year are within the letter or spirit of the statute. By extending the time for the payment of a debt due from such a corporation, by one or by several contracts, the creditor loses his claim upon the shareholders under the tenth section.

The Ithaca Organ & Piano Company was also indebted to the plaintiffs in a promissory note given for a debt that fell due more than a year before the dissolution of the corporation, which it satisfied September 9,1884, partly in cash and partly by endorsing and delivering to the plaintiffs a promissory note made by E. L. Spargo, for $475, payable to the corporation seventy-five days after date, which at maturity, November 25,1884, was dishonored and protested, the amount of which is sought to be recovered in this action.

It is urged that this note is not an extension of the period in which the original debt was to be paid, but that it was pro tanto payment, creating a new liability by the endorsement, which matured within the year preceding the dissolution of the corporation. As hereinbefore said, the object of the statute was the protection of creditors for a definite time, and they cannot extend it beyond the statutory limit and retain their right to recover from the shareholders. . If creditors of manufacturing corporations desire toll old its shareholders liable under the tenth section, their claims, must become due within one year from the time when contracted, and the period of credit must not be extended by new contracts between the corporation and the creditor.

The order should be affirmed, and judgment absolute be entered against the appellant, with costs.

Bradley, J.

I concur in the result, and my non-concurrence views expressed in the prevaling opinion has relation only to the effect of the transfer of the Spargo note to the plaintiff by the Ithaca Organ & Piano Company endorsed by the latter. That company was the holder of the note. And it must be assumed on this review that it was delivered by the company to and taken by the plaintiffs in payment of an amount of the debt due them from the company equal to that of the note; and in that view so much of the debt was extinguished, and the only liability of the Piano Company in that respect existing was that created by its endorsement. The contract made by the endorsement was a new and independent one made legitimately in due and regular course of business, and comes within the meaning of “ debts and contracts made by such company ” mentioned in § 10 of the manufacturing act. The determination of that question was not necessary to the result reached, as the recovery embraced also the amount represented by renewal notes of debt, the time for payment of which, as originally contracted for, expired more than a year before the dissolution of the corporation.

Order affirmed, and judgment absolute rendered against appellant, with costs.

All concur, Bradley, J., in result, except Haight, J., not sitting.

       Affirming 13 N. Y. State Rep., 442.


source: Caselaw Access Project

author: Bradley, J.

license: Public Domain

text:
    Susan F. Brewer, Adm’rx, Resp’t, v. The New York, Lake Erie & Western R. Co., App’lt.

      (Court of Appeals, Second Division,

      Filed January 14, 1891.)

    1. Master and servant—Express messenger—Liability of railroad FOR NEGLIGENCE.
    A person entering into a contract of service with one employer cannot, without his knowledge or assent, he made to assume the hazards of a service conducted by another, and in which he is not engaged, and be personally subjected to the consequences of the negligence of the latter without remedy against him.
    3. Same.
    ’ Plaintiff’s intestate was an express messenger in the service of the U. S. Express Co., and as such occupied the express car on defendant’s railroad, when through the derailing of the car through defendant's negligence he was killed. Defendant had a contract with the Erie Railway Co., by which the latter agreed to carry certain specified express matter, “ and in consideration of such free carriage said express company hereby assumes all transportation risks and other liabilities whatsoever in respect thereof, and agrees to fully indemnify and protect the railway company therefrom.” Held, that although plaintiff’s intestate paid no fare, and must have understood that he was there pursuant to some arrangement of his employer with defendant, he was not necessarily by that fact chargeable with notice of the provisions of the contract, and presumptively was entitled to protection against personal injury by the negligence of the defendant.
    3. Same.
    He was a passenger, and the location of the express car in the train did not deny to him the benefit of that relation.
    Appeal from judgment of the general term of the supreme court in the fourth judicial department, affirming judgment entered on a verdict in favor of the plaintiff.

      D. C. Robinson, for app’lt; Frederick Collin, for resp’t.

       Affirming 45 Hun, 595, mem.

   Bradley, J.

The plaintiff’s intestate was an express messenger in the service of the United States Express Company, and as such occupied the express car in a train upon the defendant’s railroad on January 23, 1881, when a portion of the train, including such car, was derailed, and he lost his life. The jury found that this was occasioned solely by the negligence of the defendant The principal ground alleged by way of defense was that the defendant was exempt from liability by virtue of an agreement made between the Erie Railway Company and the express company in 1877 to the rights of that railway company in which and to its franchises the defendant had succeeded. That was a contract for the transportation of property for the express company, and for that purpose the railway company agreed to provide suitable facilities.

The third clause of the contract, upon which the main question for consideration arises, was as follows: “ The Railway Company agrees that between all stations on its main and leased lines and branches it will carry free of charge to said Express Company, its messengers, wagons, horses and grain, not exceeding three car loads in any one month, and as well all packages of 'money, bank notes, bonds,- gold, bullion, jewelry and other precious articles, including the safes in which such packages shall alone be transported ; and in consideration of said free carriage said Express Company hereby assumes all transportation risks and other liabilities whatsoever arising in respect thereof, an$L agrees to fully indemnify and protect the Railway Company therefrom.”

This provision, in its relation to property which the railway company should transport pursuant to the contract, did not have the effect to relieve or indemnify it against liability for loss or injury which should be occasioned by its negligence. The intent to accomplish that purpose cannot be inferred from general words, but must be distinctly expressed in the contract with the common carrier. Magniny. Dinsmore, 56 N. Y., 168; Mynard v. Syracuse, etc., R. R. Co., 71 id., 180; Nicholas v. N. Y. C. & H. R. R. R. Co., 89 id., 370.

It is said that this provision of the contract, in its application to the express messenger referred to in it, is not entitled to such application and effect; and that by it the defendant was exempt from liability for his personal injury and death, although caused by its negligence. It is true that a carrier of persons is not subjected by law to.the obligations of a common carrier, nor is a carrier of persons a common carrier in the strict sense of the term applicable to it. While the latter, in the transportation of property, is an insurer of its safe transit, when the obligation is not qualified by contract, the negligence of the carrier of persons is essential to liability for injury to them. The settled doctrine in this state is that a carrier Of persons as well as of property, and known as a common carrier, may by contract have protection against liability for injury caused by its negligence. Wells v. N. Y. C. R. R. Co., 24 N. Y, 181; Bissell v. N. Y. C. R. R. Co., 25 id., 442; Poucher v. N. Y. C. R. R. Co., 49 id., 268; 10 Am., 364. But whether in view of the fact that the liability of a carrier to a passenger can rest on no ground less than that of negligence, renders it unnecessary to make the stipulation of the contract definite and distinct in that respect for its relief from liability is not necessarily the subject of inquiry or consideration on this review.

It may, however, be observed that in those cases where the defense has been sustained the contract has by its terms plainly guarded the carrier against liability for injury resulting from its •negligence. The provision before mentioned of the contract contains no stipulation expressly exempting the railway from liability arising from that cause. But in a later clause of the contract it was provided that: “ The railway company agrees to assume the usual responsibility of railway companies in transporting express freights, such responsibility being, however, expressly limited to cases of negligence in running and handling its trains. But in no event, whether of negligence or otherwise, shall the railway company be responsible, and it is hereby released from and the express company hereby assumes all liability for money, bank notes, jewelry, bullion and precious packages, hereinabove provided to be carried by the railway company free of charge.” This is the only provision of the cóntract specifically expressing any relief from the consequences of the negligence of the last named company ; and it may be that its protection from liability from such cause was intended to be limited by and made dependent upon that clause. And in that view the provisions of the third clause of the contract may have been intended to furnish the means of indemnity to the railway company, so far as the express company assumed the risk and undertook to indemnify and protect it from liability. These considerations bear upon the construction of the last mentioned provision of the contract, and if the messenger had been advised of it, the question may have arisen whether in its application to him the liability of the defendant would be deemed to have been any less qualified than in its relation to the property to which in common with him it there related. That is to say, whether the general words apparently applied to the property and to him without discrimination were entitled to a more extended import as to the messenger than could be given to them in their application to the other objects to which they in the same connection also equally related. It, however, does not appear that the plaintiffs intestate had any knowledge or information of the provisions of the contract between the two companies. When he entered into the service of the express company he assumed the ordinary hazards incident to that business in his relation to that company, but there was no presumption or implied understanding that the messenger took upon himself the risks of injury he might suffer from the negligence or fault of the defendant He was in no sense the employe of the defendant, nor could he without his consent be subjected to the responsibilities of that relation. Mo. Pacific R. Co. v. Ivy, 71 Texas, 409; 10 Am. St., 758. He was lawfully in the car, having the charge of the property and business there of the express company under its employment; and although he paid no fare to defendant, was carried by virtue of no contract made by him personally with the latter, and must have understood that he was there pursuant to some arrangement of his employer with the defendant, he was not necessarily by that fact chargeable with notice of the provisions in question of the contract. Presumptively he was entitled to protection against personal injury by the negligence of the defendant. Blair v. Erie R. Co., 66 N. Y., 313; Nolton v. Western R. R. Cor., 15 id., 444; Smith v. N. Y. C. R. R. Co., 24 id., 222; 29 Barb., 132; Collett v. L. & N. W. R. R. Co., 16 Adol. & E., N. R, 984. And it is not seen how Brewer could, without his knowledge or consent, be placed in such relation to the defendant as to relieve it from liability to him for the consequences of its negligence affecting him personally. His contract of employment with the express company for its service did not, so far as appears, impose upon him such hazards, nor was he chargeable with the stipulations in the contract between those companies except so far as they through notice to him or otherwise entered into that pursuant to which he went into or remained in the service of the express company. The negligence of the defendant was the violation of .its duty. It was the want of the care to which the plaintiff’s intestate was entitled for his protection.

This duty and such right did not depend or rest upon contract, but upon the relation as carrier of the plaintiff and the care which the defendant as such was required to exercise. It is violated duty that furnishes the ground of an action for negligence, and where there is no duty there is no liability for such cause. We are unable to see in principle any legal support for the proposition that a person entering into a contract of service with one employer may without his knowledge or assent be made to assume the hazards of a service conducted by another, and in which he is not engaged, and be personally subjected to the consequences of the negligence of the latter without remedy against him. Ho such question was in the case of Seybolt v. N. Y., L. E. & W. R. R. Co., 95 N. Y., 562, which arose out of the same disaster.

The contract between the companies did not purport to relieve the defendant from its duty to exercise due care for the protection of the messenger. Hor did the defendant take from it any right to disregard such duty. But whatever right to relief from the consequences of its negligence in that respect the defendant derived from the contract, arose by way of indemnity upon the stipulations of' the express company. These views lead to the conclusion that the question of negligence (which fact was supported by evidence), was properly submitted to the jury ; and the charge of the court to them “ that the extent of the defendant’s ■obligation to the deceased was to use ordinary care” was as favorable to the defendant as could be required by it. The deceased was a passenger, and therefore the refusal of the court to charge to the contrary was not error. Blair v. Railway Co., 66 N. Y., 313. The location of the express car in the train did not deny to him the benefit of that relation.

No other question requires consideration.

The judgment should be affirmed.

All concur, except Follett, Ch. J., not sitting.


text:
    Edmund Blunt, App’lt, v. Elmer Barrett, Resp’t.

      (Court of Appeals, Second Division,

      Filed January 14, 1891.)

    ¡Evidence—Burden of proof.
    Plaintiff, by his complaint, alleged his title to a certain yacht and charged that defendant wrongfully took her from her moorings to another anchorage where she was injured. Defendant admitted plaintiff’s title and alleged that he rightfully took the vessel as her custodian, as was his duty, and removed her to a place where he had no reason to apprehend any harm to her. Upon the trial the court charged that “the burden of proof is upon plaintiff and he must establish by a preponderance of evidence that the removal of the vessel was without authority and without color of authority.” Held, error; that the burden was with defendant to establish this affirmative defense of justification.
    Appeal from judgment of the general term of the superior court of the city of New York, affirming judgment entered on a verdict in favor of the defendant .

      James A. Briggs, for app’lt; Charles Blandy, for resp’t.

       Reversing 7 N. Y. State Rep., 27.

   Bradley, J.

The action was brought for an alleged wrongful taking by the defendant of the plaintiff’s yacht from a certain place where she had been laid up for the winter to another place in East river, where she sunk and was greatly damaged.

The question here arises upon the plaintiff’s exception taken to the charge of the court to the jury that “ the burden of proof is upon the plaintiff and he must establish by a preponderance of evidence that the removal of the vessel was without authority and without color of authority.” This calls atténtion to the issue presented by the pleadings, by which it appears -that the plaintiff alleged his title to the yacht at the time in question, and charged that the defendant wrongfully took her from the Knickerbocker Club grounds at Port Morris in the county of Westchester,to the foot of East One Hundred and Nineteenth street in the city of New York, and there attached the yacht to a buoy, where she was subjected to the rising and falling of the tide and exposed to danger, and that the yacht sunk and was injured. The defendant, by his answer, admitted the plaintiff’s title, and that he (defendant) took the yacht from and to the places mentioned in the complaint, and that she sunk; denied that he wrongfully took the vessel there, and alleged that he had the right and it was his duty towards the plaintiff, as the custodian of her, to remove the yacht to some safe and convenient place, and that he removed her from the place first mentioned to the foot of Bast One Hundred and Nineteenth street, where he had no reason to apprehend any harm to the vessel. It must be assumed under our system of pleadings that the plaintiff took issue upon those allegations justifying the taking, and, therefore, the affirmative of such issue was with the defendant. The burden was with the defendant to establish this affirmative defense of justification of the- taking so alleged by him, and it was error for the court to charge the jury that the burden to prove the contrary was with the plaintiff. Heinemann v. Heard, 62 N. Y., 448.

When the defendant admitted the taking and the plaintiff’s title, his defense was dependent upon some right by way of justification to take and remove the yacht, and that was essentially matter to be pleaded by him to render evidence of the facts admissible as a defense. Demick v. Chapman, 11 Johns., 132. And .the burden of proof by the issue so made, having been taken by the defendant, was not shifted to the plaintiff at the trial. As a rule it remains where the issue made by the pleadings places it, although the weight of the evidence on one side may have a controlling effect unless met by proof of the other party. Heilman v. Lazarus, 90 N. Y., 672.

It may be that the attention of the court was not specifically called to the pleadings, and it may be, as suggested in the court below, that the charge in question did not in. fact have any influence on the result, but it cannot be seen that it may not have prejudiced the plaintiff, and, therefore, the error cannot be disregarded on review.

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

All concur.


author: Haight, J.

text:
    Joseph L. Spofford, Resp’t, v. David N. Rowan, App’lt.

      (Court of Appeals, Second Division,

      Filed January 14, 1891.)

    ¡Set off—Joint debt against sepabate debt.
    At law a joint debt cannot be set off against a separate debt or vice versa/ and equity will only interpose under circumstances in which it is necessary in order to save the claim of a party, and to do this the facts must be alleged entitling the party to equitable relief.
    Appeal from a judgment of the general term of the court of •common pleas for the city and county of New York, which affirmed a judgment of the general term of the city court, which affirmed a judgment entered upon a verdict in that court

      H. C. Wilcox, for app’lt; E. P. Johnson, for resp’t.

       Affirming 6 N. Y. State Rep., 250.

   Haight, J.

This action was brought upon a check for $1,000, post dated, which it was alleged was given upon a loan of that amount by the plaintiff to the defendant. The defense was that the money was paid by the plaintiff to the defendant to apply-upon a pre-existing obligation and that the check was given as a mere memorandum without any intention that it should be paid.

Upon this issue the evidence was conflicting and the rights of the parties were settled by the verdict. The chief question brought-up for review arises out of the motion for judgment upon the counterclaims set up in the answer on the ground that they stand admitted by the pleadings. For the purpose of the argument we shall assume that the denial set forth in the reply was defective.

The first to which our attention is called is set forth in the answer both as a defense and counterclaim, and alleges in substance that the defendant had deposited the sum of $2,500 with a firm of lawyers in Galveston, Texas, for the purpose of having certain taxes paid on a tract of land in Texas, sold by one Paul N. Spofford to the defendant; also, on another tract of land comprising a sugar plantation known as Osceola, upon which the executors of Thomas'Small, deceased, clients of the defendant, had made a loan of $27,500 to Paul N. Spofford; that only $1,050 was paid upon such taxes, leaving a balance in the hands of such attorneys of $1,450, which sum it is alleged was to belong to the defendant, and was tó be credited on a loan of $10,000 made by him to the firm of Spofford Bros., of which the plaintiff, the said Paul N. Spofford, and one Gardner S. Spofford, were members; that the firm of Spofford Bros., with certain other persons named, were indebted to the lawyers with whom the deposit was made in the sum of $2,000 for professional services, and that they were pressing their claim for payment; that the plaintiff thereupon wrongfully^ and without the consent or knowledge of the defendant, wrote the said firm of attorneys in Galveston, to apply the balance of $1,450 in their hands upon the account of Spofford Bros., and to draw upon them for the balance; that afterwards when the defendant learned of the appropriation of the said $1,450 he threatened to sue the plaintiff therefor, and thereupon the plaintiff paid him the sum of $1,000 on account, which was same $1,000 pretended by the plaintiff to have been loaned to the defendant herein, and that the check mentioned in the complaint was given by the defendant to the plaintiff merely as a memorandum at the request of the plaintiff for the purpose of showing the same to Paul N. Spofford if it should be necessary so that he should not know that the plaintiff had paid the defendant the sum of $1,000 on the account aforesaid. The defendant further alleges that the plaintiff also agreed to pay him the further sum of $450, being the balance of the said sum of $1,450.

It will be observed that the matter pleaded herein pertaining to the $1,000 transaction amounts to a defense to the cause of action set- forth in the complaint, and is in no sense a counterclaim; that-only the matter alleged pertaining to the agreement to pay the $450 constitutes a counterclaim. As to that counterclaim the_ denial appearing in the reply is specific and sufficient and this is-recognized by the defendant, for in his motion for judgment upon the counterclaim he excepts the $450 claim.

The question in reference to the agreement to pay the defendant $450, together with the questions raised by the matter pleaded as defense, were submitted to the jury and were determined by its verdict.

The other counterclaim alleged in' substance that the defendant had loaned to the copartnership of Spofford Bros., composed of the persons aforesaid, the sum of $10,000, and that there was still a balance due upon such loan of $5,959.86; that Paul 1ST. Spofford and Gardner S. Spofford are insolvent; that the plaintiff is solvent, and demands that the same may be counterclaimed against any amount that may be found due the plaintiff upon the trial of this action, and that the defendant may have judgment for the balance with interest, etc.

The defendant, therefore, seeks to offset against the claim of the plaintiff one which he holds against the firm of Spofford Bros., of which the plaintiff is a member. He claims the right to do this upon the theory that the plaintiff has failed to reply to the counterclaim alleging that others are liable with him as copartners xxpon the defendant’s claim, and the case of Briggs v. Briggs, 20 Barb., 477; affirmed 15 N. Y., 471, is relied upon as sustaining this, claim. But our examination of those cases leads us to the conclusion that they have been misunderstood, and that they do not support the claim made. It is said that insolvency of one of the parties is sufficient ground for the allowance of a set-off in equity, very true, where the plaintiff has a claim against the defendant and the defendant has one against the plaintiff, the insolvency of the plaintiff furnishes sufficient ground for the interposition of equity, but that is not the case with a single member of a firm where there is no allegation that the firm is insolvent, and where its members are not parties to the action. One member of a firm may be insolvent and yet the firm may be solvent; and where other parties are jointly liable upon a claim they should all be made parties, so that the rights of all may be determined. At law a joint debt cannot be set off against a separate debt; or conversely, a separate debt against a joint debt, and equity will only interpose under circumstances in which it is necessary in order to save the claim of a party, and to do this the facts must be alleged entitling the party to equitable relief. Pomeroy on Remedies and Remedial Rights, § 756; Perry v. Chester, 12 Abb., N. S., 131; Mynderse v. Snook, 1 Lans., 488; Lush v. Adams, 10 Civ. Pro., 60; Parker v. Turner, 8 N. Y. State Rep., 500; McCulloch v. Vibbard, 51 Hun, 227; 21 N. Y. State Rep., 51; Cummings v. Morris, 25 N. Y., 625; Howard v. Shores, 20 Cal., 277; Ingols v. Plimpton, 10 Col., 535; Baker v. Kinsey, 41 Ohio St., 403-408.

We consequently are of the opinion that as to this counterclaim the defendant failed to allege a cause of action against the plaintiff, and therefore the motion for judgment thereon was properly denied.

It may be claimed that the question should have been raised by demurrer thereto, but this is not necessary under § 499 of the Code of Civil Procedure.

These views render it unnecessary to consider the other questions raised in the case.

The judgment should be affirmed, with costs.

All concur, except Folleto, Ch. J., and Potter, J., not voting.


text:
    William Taylor, Resp’t, v. Enoch Morgan’s Sons Co., App’lt.

      (Court of Appeals, Second Division,

      Filed January 14, 1891.)

    1. Master and servant—Construction of contract of employment— Commissions on sales by agent.
    Under a written contract with defendants, plaintiff was required to travel over a route in three states named, at least six times per year, represent and sell defendant’s goods, and pay his own expenses. He was to he-paid commissions “upon all orders accepted from bona fide purchasers.” He had previously been employed under an oral agreement giving him commissions on defendants sales in those states, with exclusive right to represent them therein. Held, that plaintiff was entitled to recover commissions on all orders made by parties on the line of his route in the states, named outside of the territories excepted by the provisions of the contract, and was not limited to those taken by him and forwarded to the company.
    2. Same.
    Plaintiff was entitled to commissions upon orders from responsible parties which were not accepted by-the defendant. It was its duty to accept: all such orders, and it could not, without cause, arbitrarily refuse to do so.
    Appeal from a judgment of the general term, first department, affirming a judgment entered upon the report of a referee.

      Austen G. Fox, for app’lt; William H. Hamilton, for resp’t.

       Affirming 16 N. Y. State Rep., 94.

   Haight, J.

This action was brought to recover commissions claimed to be due from the defendant on sales of merchandise. The claim was based upon a written contract, and the principal. question brought up for review involves the interpretation of the contract

The plaintiff had been for a number of years a traveling salesman for Colgate & Co. through the states of Hew York, Hew Jersey and Pennsylvania. The defendant was engaged in the-manufacture and sale of soaps of various kinds, including sapolio.

The plaintiff first entered the employment of the defendant, under an oral agreement, whereby he was to represent and sell the defendant’s laundry soaps and sapolio throughout the states of Hew York, Hew Jersey and Pennsylvania, and to receive therefor as compensation commissions on the defendants sales in those-states. It was further understood that he was to have the exclusive right to represent and sell the defendant’s soaps in those-states, and that he should not be interfered with by the company or its salesmen.

After serving the defendant nine months under this agreement a controversy arose, and the employment thereunder was terminated. A settlement, however, was agreed upon and the contract under consideration executed. It is in the form of a letter addressed to the plaintiff by the secretary of the defendant, with. the acceptance of the plaintiff written thereunder. The- material portion necessary to consider upon this review is as follows:

“New York, December 22, 1881.
William Taylor, Esq., Present:
“Dear Sir—Having determined and settled all differences between yourself and this company by placing to your credit five hundred dollars on December 1st, we herein confirm the understanding as to the future from that date, viz.:

You are to travel over your route in this state, New Jersey and Pennsylvania at least six times per year and represent and sell our brands of laundry soap, sapolio and other goods, paying your own expenses, handling no other goods to conflict with ours, to conduct yourself and the business in a manner to our general satisfaction, for which we ag-ree to pay you a commission upon all orders accepted from bona fide purchasers as follows, viz: on all laundry soaps sold at a price of not less than three and three-fourths cents per pound of ten per cent.; on all sapolio sold to trade not heretofore sold by us, ten per cent.; on all sapolio to our regular trade outside of this city, Brooklyn and certain parties in Newark, five per cent.; and on other goods and sales as may be agreed upon between us.”

The referee has found as facts that the plaintiff entered upon his duties under this agreement; that he traveled to and through the places mentioned, introduced and sold large quantities of soap, sapolio and sal-soda, and continued in the discharge of his duties until about the 1st day of January, 1884, when the agreement was terminated. It was also found that some of the orders accepted by the defendant came directly to it from the individuals making the order, and that some were taken by other employes of the company.

The referee held that the plaintiff was entitled to recover commissions on all orders made by parties on the line of his route in the states named outside of the territories excepted by the provisions of the contract, for which he gave judgment for the balance due. On the part of the defendant it was claimed that he was only entitled to commissions on orders taken by him and forwarded to the company.

It will be observed that under the provisions of the contract the plaintiff was required to travel over his route in the three states named at least six times per year, and represent and sell the defendant’s goods, he paying his own expenses. His entire reward for the services rendered was in the commissions which the defendant agreed to pay him.. He had for many years been engaged in a similar business for Colgate & Co., had a line of acquaintances and customers, and it became, his duty to use his best endeavors to extend the defendant’s trade, introducing its soaps, sapolio and other goods to the dealers with whom he should be acquainted. He was to be paid commissions “upon all orders accepted from bona fide purchasers.” This language is broad and sufficient to support the contention of the respondent. Had it been the intention of the defendant to limit his commissions to orders obtained and received from him, apt words, clearly expressing that intent, would" doubtless have been used. The route was specified as his, and under the previous contract, as we have seen, he was given the exclusive right to sell without interference by the company or its salesmen. On sapolio sold to the trade not previously sold by the defendant, he was to have a commission of ten per cent., whilst on the sapolio sold to the regular trade of the defendant he was to have but five per cent.; thus clearly indicating an intention to allow commissions upon the old as well as the new trade. The plaintiff could hardly be expected to drum up customers at his own expense without" receiving any benefit from sales made to such.

The wording of the contract is such as to lead us to conclude that the interpretation adopted by the referee expressed the intention of the parties, and that the same should be approved.'

It is contended on the part of the appellant that the court improperly admitted oral evidence on theápart of the plaintiff tending to explain the provisions of the agreement, and excluded such evidence offered on behalf of the defendant Evidence of this character, when first offered by the defendant, was excluded, and an exception taken, but, as we understand, the evidence so excluded was subsequently given, thus curing the defect, if any. We do not understand the provisions of the contract to be so ambiguous as to make oral testimony necessary in order to explain its meaning, and we quite agree with the general term that all of the evidence taken upon this branch of the case might have been properly excluded, but we- do not see” how harm has resulted to the defendant, for without the evidence we should be compelled to reach. the same conclusion in reference to the meaning of the contract.

The referee allowed the plaintiff commissions upon orders from responsible parties which were not accepted by the defendant We incline to the view that it was the duty of the defendant to accept all orders presented by the plaintiff from bona fide purchasers which were made in accordance with the provisions of the contract, and that they did not have the right without cause to arbitrarily refuse to accept stich-orders. Such a construction of the contract would require the plaintiff to travel over the territory mentioned at his own expense six times a year, with a right on the part of the defendant to reject every order presented by him, and to thus deprive him of any commissions.

Other exceptions have been presented and considered, but none appear which render a new trial necessary.

The judgment should be affirmed, with costs.

All concur.


author: Vann, J.

text:
    James Outwater, Resp’t, v. Jeremiah Moore, App’lt.

      (Court of Appeals, Second Division,

      Filed January 14, 1891.)

    Judgment—Where plaintiff succeeds upon one issue and defendant UPON ANOTHER.
    Plaintiff brought this action to compel defendant to remove a fence which he claimed was not erected upon the line, but on plaintiff’s land; also to compel defendant to lower a certain dam which he had wrongfully raised two feet, thereby flooding plaintiff’s land. The court found in defendant’s favor on the first issue and in plaintiff’s on the second, but the judgment entered contained no adjudication as to the fence, and the court refused, on motion of defendant, to compel plaintiff to insert findings in the former’s favor in regard to it. Held, error; that it was the duty of the court to direct such a judgment in defendant’s favor as the established fac s required, so that there might be authentic, permanent and indisputable evidence of record as to. his rights.
    Appeal from a j udgment of the general term of the supreme court in the second judicial department, modifying and affirming as modified a judgment entered upon the decision of the court at special term and also modifying and affirming as modified an order denying a motion to conform the judgment to the findings and for other relief.
    The plaintiff alleged, in his complaint that on the seventh day of June, 1883, he owned certain premises in the-town of Eed Hook, Dutchess county, and that the defendant on or about tha$ day entered thereupon, took down the fence that stood thereon and removed the same; that he also “ then and there erected another fence, and said new fence was not erected upon the true division line between the land of plaintiff and defendant nor upon the line of the old fence, but upon the land of the plaintiff, without any right or authority in the defendant so to do, and dug holes, trod down grass and otherwise injured plaintiff’s premises to his great damage (amounting to) twenty-five dollars.”
    As a second cause of action the plaintiff alleged that in 1882 the defendant erected a dam across a creek that flowed through said premises upon the site of an old dam “ and where he had a right to erect it to a certain height,” but that he “ wrongfully raised the same two feet higher than the old dam or than he had a right to raise or build the same,” and thereby caused the water to overflow and injure the said lands. The prayer for relief was that the defendant be compelled to lower his dam to its proper level, return the fence to its proper line and pay the plaintiff the sum of $125 as damages. The answer was a general denial.
    The action was tried before the court without a jury, and the justice presiding found the facts in favor of the defendant upon the first issue and in favor of the plaintiff upon the second, and as a conclusion of law, “that the dam erected across said creek or stream be lowered fourteen inches throughout its whole length by defendant on or before May 15, 1884, and that plaintiff recover from the defendant the sum of six cents damages and his costs and disbursements in this action.” The judgment subsequently entered recited none of the facts found, except such as were favorable to the plaintiff, and it contained no adjudication upon the issue relating to the division fence. Thereupon, the defendant, upon due notice, moved at special term for relief in various forms and, among other things, “ for an order that the judgment herein be made to follow and conform to the findings herein as to the line fence between the parties,” but the motion was denied, with ten dollars costs. Upon appeal to the general term, both from the judgment and from the order denying said motion, the former was so modified as to require the defendant to lower his dam ten inches instead of fourteen, and so as to provide that the plaintiff should recover neither costs nor disbursements of the action. The order was also modified by striking out the award of costs¡ and both the judgment and order, as thus modified, were affirmed without costs to either party.

      Homer A. Nelson, for app’lt; Daniel W. Guernsey, for resp’t.

       See 14 N. Y. State Rep., 935.

   Vann, J.

The learned trial justice found as a fact “ that the fence mentioned in plaintiff’s complaint and alleged to have been built by defendant on plaintiff’s land is not upon plaintiff’s land, but upon the line between plaintiff and defendant, and marks the same,” but he refused to find, upon the request of the defendant, as a conclusion of law, “ that the defendant is entitled to judgment herein declaring that the fence mentioned in the complaint is not upon the land, of plaintiff, but is upon the line between plaintiff and defendant’s lands.” The defendant excepted to this ruling and now insists that he has been denied a substantial right by the refusal of the court to find the conclusion of law required by the facts as established, and to adjudge that the fence in question is upon the true line of division between the lands of the parties.

The issue relating to the location of the fence was tendered by the plaintiff, accepted by the defendant and thoroughly tried by both parties, without question as to form or remedy. It was a material issue upon which the first cause of action set forth in the complaint mainly depended. When the trial court found the facts in favor of the defendant, he was entitled to the fruit of"'the finding by having the law properly applied and such an adjudication made as would, by matter of record, estoj) the plaintiff from reopening the controversy. It, therefore, became the duty of the court, upon the request of the defendant seasonably made, to direct such a judgment in his favor as the established facts required, so that there might be authentic, permanent and indisputable evidence of record as to his rights. As the complaint could not be dismissed upon the merits, because the plaintiff succeeded on the second cause of action, the defendant could have adequate protection only by an express direction for judgment in his favor to the extent that the facts were found in his favor. This the learned trial judge, doubtless through inadvertence, refused. to do, although a request inpropér form was presented to him at the proper time. Fortunately this error is corrigible upon appeal without ordering a new trial, as it is the duty of the appellate court to declare the law and apply it to the facts, already found; and thus protect the parties from the evil of further litigation.

The judgment, therefore, should be so modified as to adjudge that the fence mentioned in the complaint is not upon the lands of the plaintiff but is upon the line between the lands of the plaintiff and defendant, and as thus modified affirmed, but, as the defendant’s appeal was general and there is no other question requiring consideration, without costs in this court to either party.

All concur.


author: Per Curiam.

text:
    Micajah W. Jackson, Resp’t, v. The City of Rochester, App’lt.

      (Court of Appeals, Second Division,

      Filed January 14, 1891.)

    Appeal—When brought unnecessarily—Code Civ. Pro., § 3251.
    When two actions differing in no material respect were brought and judgments obtained against defendant and one of them affirmed in this court December 20, 1887, and yet in spite of such affirmance defendant persisted in its appeal upon this action which had been taken March 23, 1886, although all the questions had been finally passed upon in the other appeal, the court, as damages by way of costs for the delay, gave plaintiff ten per cent, upon the amount of the original judgment.
    Appeal from a judgment of the general term of the supreme court in the fifth judicial department, denying a motion of the defendant for a new trial and ordering judgment for the plaintiff upon a verdict in his favor rendered on trial at circuit

      Henry J. Sullivan, for app’lt; George A. Benton, for resp’t
   Per Curiam.

This case differs in no material from one recently decided by this court against the same defendant Hooker v. City of Rochester, 107 N. Y., 676; 12 N. Y. State Rep., 864.

Mo attempt was made by the learned counsel for the appellant to distinguish the two cases, and a careful examination of the appeal book in each enables us to say that no distinction in fact exists. As the same questions arising out of substantially the same facts are brought before the court a second time, it is our duty to pronounce the same judgment

This appeal was taken March 23, 1886, and the decision in the Hooker case was handed down December 20, 1887. As the defendant persisted in its appeal and insisted upon arguing it after all the questions involved had been finally passed upon by this court nearly three years before, we award to the plaintiff as damages by way of costs for the delay, pursuant to § 3251 of the Code of Civil Procedure, ten per cent upon the amount of the original judgment

Judgment affirmed, with costs and an allowance of ten per cent upon the amount of the original judgment

All concur, except Bradley and Haight, JJ., not sitting.


author: Freedman, J. Ingraham, J.

text:
    Patrick J. Kelly, Resp’t, v. Robert E. J. Miles et al., App’lts.

      (New York Superior Court, General Term,

      Filed January 5, 1891.)

    1. Damages—Loss of profits.
    Profits, to be recoverable, must be the direct and immediate fruit of the contract, and must be independent of any collateral engagement or enterprise entered into in expectation of the performance of the principal contract.

      2. Same.
    Plaintiff sublet premises from defendants, covenanting to surrender possession for two months during the first summer to allow the owner to make repairs. He did so, but was unable to regain possession for eight months, the repairs not being completed, and then obtained only part of the premises rented by him. In an action to recover damages caused by his being kept out of possession he was allowed to prove and recover for loss of profits in his business. Held, error; that the true measure of damage was the excess of the actual rental value the premises would have had if completed in time over the rent reserved in the lease. .
    Appeal from judgment entered in favor of the plaintiff upon the verdict of a jury, and from order denying defendant’s motion for a new trial.

      Robert G. Ingersoll, for app’lts; J. K. Hayward, for resp’t
   Freedman, J.

The plaintiff leased certain premises at No. 1237 Broadway from the defendants to be used as a saloon. The lease was for three years from May 1, 1883, at a rent of $375 per month, payable in advance. The plaintiff covenanted that he would yield up possession of the premises for two months during the summer of 1883, but still pay the rent for the same. The defendants were themselves lessees of the same property, and the object of surrendering the possession for the two months was to enable the owner to make alterations in the property by changing it and partially rebuilding it and adding one or two stories to the building.

The plaintiff entered under the lease and paid the rent as agreed down to July 1, 1883, when he vacated the premises to allow the owner to make the contemplated alterations, but he was unable to regain possession, because of the dismantled condition of the premises, until on or about March 10, 1884, when he obtained only a part thereof. He then continued in such possession until November 28, 1884, .when, at the suit of the defendants, be was dispossessed because he refused to pay full rent for the six months between September 10th and March 10th, and also refused to pay full rerit from March 10th to November 28th. At the time of taking the lease the plaintiff deposited with the defendants the sum of $2,300 .as security for the payment of the rent. After November 28th he commenced an action in the supreme court to recover that sum, setting up that he was not bound to pay rent during the six months that the premises were entirely destroyed, and only bound to pay rent to be apportioned for that portion of the premises which he occupied thereafter, and praying to have the apportionment determined by the court and deducted from his deposit and for judgment for the balance.

In that action the court held that the plaintiff was not liable for any rent during the six months from September to March, and only for rent to be apportionéd for the period between March and November, and after determining what that was and deducting it from the amount of the deposit, the court gave to the plaintiff a judgment for the balance. This judgment was affirmed upon apped. and the litigation covered by it is at an end.

The plaintiff then commenced the present action to recover damages to the amount of $20,000, alleged to have been sustained in consequence of the failure of the defendants to have the premises completely rebuilt within the two months referred to.

The defendants, by their answer, denied the damages, and pleaded that all claim therefor was waived by the voluntary return of the plaintiff, without objection, to the premises, aud also that the judgment of the supreme court was res judicata as to such claim.

The trial judge refused to dismiss plaintiff’s complaint, refused to hold that the said judgment was res judicata as to the claim, and allowed the plaintiff to give evidence and the jury to consider it, of loss of profits in the business carried on upon the premises, and of expenses incurred by the plaintiff in making the premises fit for his use.

The exceptions taken by the defendants call for a review of these rulings.

The loss of profits was limited to a period of six months preceding the 10th day of March, but even with this limitation the ruling constituted error.

Profits, to be recoverable, must be the direct and immediate fruit of the contract, and must be independent of any collateral engagement or enterprise entered into in expectation of the performance of the principal contract. If they are of this character, they are part and parcel of the contract itself and enter into and constitute a portion of its very elements. If they are not of this character they are excluded, not because they are in themselves remote, but because they depend wholly upon contingencies, which are so many, so various and- so uncertain. If they are also remote, that constitutes an additional reason for excluding them. • Parsons on Contracts, vol. 3, pp. 181—183.

To the same legal effect is the rule as stated in Griffin v. Colver, 16 K. Y, 489, and in Dodds v. Hakes, 114 id., 260; 23 N. Y. State Rep., 192.

Judged by these rules the profits sought to be recovered in this case were clearly contingent, if not remote. The plaintiff was kept out of the premises by no fault of the defendants, but by the act of their paramount landlord, and hence it cannot be deemed that the loss of profits was contemplated by the parties at the time of the execution of the lease as a direct and immediate result of a possible breach of the contract. The plaintiff in fact did business for about two months only, and then vacated the premises under his covenant that he would do so for two months to enable repairs and alterations to be made. Whether or not he could have gone back after the expiration of the two months last referred to, if the premises had then been completed as they should have been, and could have made any profits for six months continuously thereafter, depended upon many, various and uncertain contingencies. It was purely problematical and consequently the supposed lost profits were purely contingent and speculative.

Moreover, in Hayden v. Florence Sewing Machine Co., 54 N. Y., 221, it was expressly held that in the case of a tenant suing to recover damages for having been wrongfully removed from the premises under a warrant issued by a justice in summary proceedings, damage done to his business is not recoverable.

In Giles v. O'Toole, 4 Barb., 261, which was an action by the lessee against the lessor to recover damages for a wilful refusal to give possession of the demised premises, and the decision of which has been approved and followed in many cases, the same ruling was made as to profits and the measure 'of damages was held to be the damages arising from expenses incurred in preparing to remove to and occupy the premises, together with the difference between the real value of the rent and the sum agreed to be paid.

And in Dodds v. Hakes, 114 N. Y., 260; 23 N. Y. State Rep., 192, the rule as to damages for failure to give possession of demised premises was stated as follows: “The rule in all cases when damages are claimed solely from the failure of the lessor to give the lessee possession of the leased property is well settled, and limits the plaintiff’s recovery to an amount represented by the excess of the actual rental value over the rent reserved in the lease. Trull v. Granger, 8 N. Y., 115; Pumpelly v. Phelps, 40 id., 60.”

These rules clearly show that it was error to allow the plaintiff to testify, and the jury to consider the testimony, as to the alleged loss of profits, and that the measure of damages which should have been adopted was the amount represented by the excess of the actual rental value which the premises would have had if they had been completed in time, over the rent reserved in the lease.

The error pointed out necessitates a new trial, and consequently it is not necessary to determine the other questions in the case.

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

Sedgwick, Ch. J., concurs.

Ingraham, J.

I concur in Judge Freedman’s opinion, but do not wish to be considered as deciding that upon the evidence the defendants were liable. There was no express covenant in the lease to plaintiff. It did not appear that defendants were under any obligation to make the repairs or that they assumed to do so. The agreement between the parties to this action provided that the owner of the building, who was the paramount landlord, was to make the repairs, and plaintiff agreed to yield up the possession of the premises to allow him ■ to make such repairs. There was no evidence that the defendants were ever in possession of the property leased to plaintiff and I don’t see how these defendants could be held to be resposible for the default of the owner in making the repairs within the two months or for his failure to restore possession of the premises to the plaintiff.

Judgment and order reversed and new trial ordered, costs to appellant to abide event.

       Affirming 7 N. Y. State Rep., 853.


author: Ingraham, J.

text:
    John Townshend, Resp’t, v. Caroline O. Bogert et al., Impl’d, App’lts.

      (New York Superior Court, General Term,

      Filed January 5, 1891.)

    Partition—Parties.
    Before a person can be made a proper party to an action of partition he must either have an estate in the premises or in some portion thereof, or he must have a lien or interest which attaches to the entire property or to an undivided share or interest therein, and the share or interest of each defendant must appear from the complaint. A person who claims adversely to plaintiff’s title or whose claim is a cloud on the title, is not a proper party.
    Appeal from judgment overruling demurrer to complaint.

      John S. Davenport, for app’lts; John Townshend, for resp’t
   Ingraham, J.

The action is for a partition of real property. The complaint alleged that the property described is held in •common by the plaintiff and the defendants, Townshend and Lockwood, and that the defendant appellant claims some “ right, •title or interest in said premises, the exact nature of which is unknown to plaintiff and which is a cloud upon the title to said premises.”

Judgment is demanded for a sale of the property, and that the proceeds thereof be divided among the parties named as the owners thereof, and that it be adjudged that this defendant has not a right, title or interest, claim or demand for,' to or in, or upon, or .against said premises or any part thereof, and that the defendants and all persons claiming under or through them be barred of all right, title and interest in said premises in possession, reversion, remainder or otherwise.

This defendant demurs on the grounds, first, that the complaint fails to state facts constituting a cause of action against this defendant, and, second, that causes of action have been improperly united. If the action be considered as an action of partition only, I do not think the complaint states a cause of action against the .appellant

Actions of partition, are regulated by the Code of Civil Procedure, § 1532 to § 1595, inclusive; §§ 1538 to 1540, inclusive, •contain the provisions as to the proper parties to such an action. Section 1538 provides who must be made parties. The provisions of that section do not apply to this defendant. Section 1539 provides that plaintiff may at his election make a tenant in dower, or by curtesy, or for life, or for years of the entire property, or a person having a lien or interest which attaches to the entire property, a defendant in the action; and § 1540 provides that a person having a lien on an undivided share or interest in the property may be made a defendant It will be seen that no provision is made for making a person who merely claims an interest in the property a party. Before a person can be made a proper party to such an action, he must either have an estate in the premises or in some portion thereof, or he must have a lien or interest which attaches to the entire property, or to an undivided share or in•erest therein, and the share or interest of each defendant must •appear from-the complaint.

Ebr do I think that § 447 of the Code allows the plaintiff in an action of partition to make a person who claims adversely to the plaintiff’s title a party, and compel him to litigate his interest in -the property in such an action.

That section provides that any person may be made a party defendant who has, or claims, an interest in the controversy adverse to the plaintiff, or who is a necessary party defendant for the complete determination or settlement of a question involved therein.

There is no controversy involved in this action in which a person who claims adversely to the title of the plaintiff and his co-tenants in common has an interest. The action is not to determine the title to real property or to ascertain who- holds the legal title.

It is well settled that an action for partition cannot be made a substitute for an action of ejectment, or other action to establish the legal title of adverse claimants to real property. Van Schuyver v. Mulford, 59 N. Y., 430; Esterbrook v. Savage, 21 Hun, 151. And no such issue can be tried in such an action. There is no contro- _ versy therein in which a person who has a claim to the property adverse to the plaintiff's title has an interest.

The allegations of the complaint are not sufficient to maintain an action to declare the interest claimed by this defendant a cloud upon the title, or an action to compel the determination of a claim to real property, but if the allegation were sufficient it is clear that neither of these causes of action could be joined with a cause of action for a partition.

I think, therefore, that the order and judgment appealed from should be reversed and the demurrer sustained.

Sedgwick, Ch. J., concurs.


text:
    Leopold Wormser et al., App’lts, v. Isaac Levy, Resp’t.

      (New York Superior Court, General Term,

      Filed January 5, 1891.)

    Trade names—Restraint oe use oe similar words.
    Defendant and his partners in 1880 adopted the name of the “Westchester Clothing Co.,” which was changed to “ New York & Westchester Clothing Co.” In 1881, plaintiffs adopted the name of the “Harlem & Westchester Clothing Co.” Held, that plaintiffs were not entitled to prevent the use by defendant of the word “Westchester,” especially as it appeared that they have allowed snchuse for seven years without objection or protest, although in direct competition for a part of the time.
    Appeal from judgment entered upon a decision of the court at special term.

      Edward W. S. Johnston, for app’lts ; Otto Horwitz, for resp’t.
   Ingraham, J.

The defendant testified positively that he and his brother did business at his present place of business in the year 1878 as “The Westchester Hat Company;” that subsequently, in the year 1880, they started a store at 138 Ewen street, Williamsburgh, and that that business was carried on under the name of “The Westchester Clothing Company,” and his testimony was corroborated by his brother and others.

While it cannot be said that their evidence is free from criticism, the trial judge having heard the testimony and seen the witnesses, his findings of fact cannot be disturbed.

The trial judge found as follows:

“ Y. The defendant, in the year 1878, associated with himself in his said business his brother Louis Levy, and thereupon an addition was made to said business of dealing in hats under the name of ‘ The Westchester Hat Company,’and the business was carried on, and such name used for a few months, when the hat business was discontinued.
“ VI. The defendant, in the year 1880, formed a co-partnership with his brother Louis Levy and one Jacob Bach, who thereupon •opened a retail clothing business at 138 Ewen street in the city of Brooklyn, New York, and that said parties at thnl time began the use of the name ‘Westchester Clothing Company ’ in the canying on of the said business.
“VIII. The defendant has had, since 1880, couspicuous signs in and about his place of business at Ho. 2714 Third avenue, Hew York city, containing the words New York & Westchester Clothing Company,’ and his business, which was, on or about the year 1882, enlarged to take in three stores, has been from that time until the present advertised in the Westchester Times newspaper, and has become well known to the residents of what was formerly Westchester county under said name.”

The name of the “Harlem & Westchestei Clothing Co.” was not •adopted by the plaintiff until October, 1881. It is clear that the plaintiff cannot prevent the use by the defendant of the name “ Westchester,” when it was adopted and used by defendant as the name under which his business was carried on before it was adopted by the plaintiff.

The case from the plaintiff’s standpoint does not present a strong claim for equitable relief. The stores of the plaintiffs and defendant are more than a mile apart. The names adopted are not alike, one being the “Harlem & Westchester Clothing Company,” and the other the “New York & Westchester Clothing Company.” Heither are manufacturers of goods; there is no question of trade mark, and according to plaintiffs’ own evidence the defendantwas using this title within a short time after the plaintiffs adopted the name which they seek to protect, and the plaintiffs have allowed, without objection or protest, the defendant to use the name for upwards of seven years, although for a time having a branch store directly opposite the defendant’s store, and being thus competitors in business. All this tends to show an acquiesence in the use by the defendant of the name adopted by him. It is not, therefore, necessary to determine the interesting question as to whether or not a party can, by adopting a geographical name as the name under which he does business, acquire such a property right to use that name as to prevent others from using it in any combination for the same purpose.

I think the judgment was right and should be affirmed, with •costs.

Sedgwick, Ch. J., and Freedman, J.. concur.


author: Freedman, J.

text:
    Lida C. Schwarz, Pl’ff, v. The Family Fund Society, Def’t.

      (New York Superior Court, General Term,

      Filed January 5, 1891.)

    Appeal—Exceptions heard at general term in first instance.
    In the case of a motion for a new trial upon exceptions at general term, after the direction of the verdict, the verdict cannot he disturbed unless there was an exception to the direction, of the verdict. Without such exception it must be deemed that the party acquiesced in the direction and all previous exceptions thereby become immaterial.
    Exceptions ordered to be heard in the first instance at general term.

      Blumenstiel & Hirsch, for pl’ff; Charles S. Noyes, for def’t.
   Freedman, J.

The action was brought by the plaintiff as the beneficiary under a policy for the sum of $5,000 issued by defendant on the life of Louis Schwarz, her husband, who died July 17, 1889.

The defense was a general denial and a justification of defendant’s refusal to pay because of alleged false representations in obtaining a reinstatement of the policy.

At the trial evidence was given on both sides, and upon the close of the evidence plaintiff’s counsel moved that a verdict be directed for the plaintiff on certain grounds which he stated. The court granted the motion and directed the jury to find a verdict for the plaintiff for the sum of $5,164.99, and the jury rendered a verdict accordingly. The court thereupon ordered “that the exceptions taken during the trial be heard in the first instance at general term, and that the entry of judgment upon the verdict aforesaid be suspended in the meantime and until the hearing and decision of the general term of this court upon the said exceptions.”

The case fails to show that the defendant excepted to the direction of the verdict.

There are but two cases in which the proceedings upon a trial before a court and jury can be reviewed at general term in the first instance and before judgment.

One is where the unsuccessful party desires to move for a new trial upon exceptions taken by him upon the trial, and the trial judge directs that such motion upon said exceptions be heard in the first instance at general term, and that the entry of judgment be suspended until the decision of thq general term.

The other case is where, upon the trial, an uncontroverted state of facts is presented, involving only questions of law, without exceptions on either side to the reception or rejection of evidence, and the judge directs a verdict subject to the opinion of the court at general term.

In each of these two cases the jurisdiction of the general term is limited by the order sending the case there.

On an appeal from a judgment the jurisdiction of the general term depends upon the notice of appeal. If the notice states that, the appeal is from the judgment, only questions of law can be reviewed. If, however, it states that the appeal is from the judgment and also from the order denying motion for a new trial, ques- >■ tions of fact as well as of law may be reviewed.

In the two cases specified in which the general term may consider certain questions before judgment, the order sending the case there takes the place of a notice of appeal and confines the jurisdiction of the general term to those matters which under the provisions of the Code of Civil Procedure may he done under the order.

In the case, therefore, of a motion for a new trial after the direction of a verdict upon exceptions, the first requisite for a disturbance of the verdict is that there should be an exception to the direction of the verdict. Without such an exception it must be. deemed that the party against whom the verdict was ’ directed, after all, acquiesced in the direction. The necessary conqseuence of this acquiescence and of the lack of power in the general term to disturb the verdict as directed, is that all prior exceptions taken in the course of the trial have become immaterial. The case before us is subject to this criticism. "

The exceptions must be overruled and judgment ordered for the plaintiff upon the verdict, with costs.

Sedgwick, Ch. J., concurs.


text:
    George A. Wilbur, Pl’ff, v. The New York Electric Construction Co., Def’t.

      (New York Superior Court, General Term,,

      Filed January 5, 1891.)

    1. Contract—Validity.
    A contract which contemplates the use of personal influence or solicitation with public officers to procure a contract is void as against public-policy.
    2. Same.
    Prior to the incorporation of defendant, one H. told plaintiff to endeavor to get a contract from the city of Utica for lighting its streets by electricity, and he would pay for his time, and if he got the contract they would divide commissions. Plaintiff procured the contract, by personal solicitation of the members of the common council, and defendant sold the plant to said city. Held, that there was no agreement op. behalf of defendant whereby it could be held liable to plaintiff.
    Exceptions taken by the defendant ordered to-be heard in the. first instance at general term.

      A. J. Dittenhoefer, for def't; James Edward Grayhill, for pl’ff.
   Ingraham, J.

The contract sued on is alleged in the complaint as follows: “ At the special instance and request of the defendant herein the plaintiff rendered to and for said defendant certain, work, labor and services in soliciting, advocating and procuring for and in the name of the said defendant from the municipal corporate authorities of the city of Utica in the state of New York, a. three years contract for the lighting of said city by electricity and' for a franchise granting to said defendant the right to erect and use wires, poles and. other necessary appurtenances in the streets and-thoroughfares of said city, and to transact its business-in and throughout said city, and in the making of drafts, surveys, examinations, calculations, illustrations and drawings to be used in the preparation of the bid for the contract aforesaid, and in the arguments before the said municipal corporate authorities; and after the awarding of said contracts to said defendant by said municipal corporate authorities, in making examinations and surveys for the location of, and in locating and superintending the erection of the electric lights in said city pursuant to the said contract.”

To prove this allegation in the complaint, plaintiff testified to a conversation between himself and one Hapgood, at which time Hapgood told the plaintiff:

“ To go to Utica, and if possible to secure a contract for lighting all of ‘the city, or as much of it as he could get. He told me he wanted me to secure a contract, and wanted me to use my own discretion in the matter of putting the bid and doing the preliminary work.”

Plaintiff went to Utica, and as to a portion of the work that he did, he said: “ I made frequent canvasses of the city, and got acquainted with nearly all the aldermen. I explained how much more advantageous it would be lighting the city by our system of electric light than- by their combined system. I got many of the councilmen on my side. As time progressed, I made frequent canvasses to them and canvasses of the city. On Friday evening I had a meeting with the committee of the council in the chairman’s office, at which the mayor was present. I told them at that time what I proposed to do and how, and just what my bid would be, and asked them if they thought it was for the best interest of the city to advocate my bid, and they promised to do so. That evening the bids were all opened; it was a very hotly contested fight, and there were many bids by different companies.”

Plaintiff was not a lawyer, but described himself as in the electric light business, and as representing other electric companies in procuring contracts for the sale of their apparatus. He said, in answer to a question: “ What prior experience have you had before lobbying in Utica?” that he had been at it more or less since he had been in business; all his business life.

I think this contract is void as against public policy.

It has long been settled that a contract to exert personal influence to induce a public officer or member of a legislative body to do any official act is illegal and void, and this principle has been applied to all the departments of government, judicial, executive or legislative, and is placed upon the broad principle that all contracts leading to secret, improper and corrupt tampering with official action are void.

Thus in Sedgwick v. Stanton, 14 N. Y., 294, the court say :

“ Persons may no doubt be employed to conduct an application to the legislature as well as to conduct a suit at law, and may contract for and receive pay for their services in preparing documents, collecting evidence, making statements of facts or preparing and making oral and written arguments, provided all these are used or designed to be used for the legislature itself or some committee thereof as a body, but they cannot with propriety be employed to exert their individual influence with individual members or to labor in any form privately with such members out of the legislative halls. The point of the objection in this, class of cases then is the personal and private nature of the services to be rendered.”

And in Mills v. Mills, 40 N. Y, 546, it was stated: “To procure the passage of such a law for the benefit of ■ the defendant, he undertook to use his utmost influence and exertion. This contract is void as against public policy. It is a contract leading to secret, improper and corrupt tampering with legislative action. It is not necessary to adjudge that the parties stipulated for corrupt action or that they intended that secret and improper resources should be had. It is enough that the contract tends directly to those results ; it furnishes a temptation to the plaintiff to resort to corrupt means or improper devices to influence legislative action. It tends to subject the legislature to influence destructive of its character and fatal to public confidence in its action.”

And in Tool Co. v. Norris, 2 Wall., 55, an agreement for compensation to procure a contract from the government to furnish it supplies was held against public policy and void, the court saying : ‘‘ There is no real difference in principle between an agreement to procure favors from legislative bodies and an agreement to procure favors in the shape of contracts from the heads of departments. The introduction of improper elements to control the action of both is the direct and inevitable result of all such arrangements.”

It is sometimes difficult to draw the line between contracts that fall within the prohibition above stated and those which provide for legitimate services, for it may be said to be settled that when a person has something to sell which the government wishes to-buy, or is able to make a contract to do an act which the government wishes done, he has a perfect right to appoint an agent to act for him in making the sale or the contract, and that such an agent is entitled to recover compensation for his services. And it is also clear that an employment to appear before a legislative committee and publicly favor the passage of a law is valid, but it seems to me equally clear that a contract which contemplates the use of personal influence or solicitation with public officers to procure a contract is as much opposed to public policy as a contract to use personal influence or solicitation with members of the legislature to procure the passage of a law; in either case the object to be attained is to induce a public officer or a legislator to act from personal motives and not for the benefit of the public; in other words, to violate his duty, and public policy requires that no contract which recognizes such influence shall be upheld.

The case of Lyon v. Mitchell, 36 N. Y., 235, is an illustration of a contract which has been held valid, as that was the mere appointment of an attorney to sell property to the government with an agreement for compensation for services to be rendered under the employment. Nothing appeared in the contract that would indicate that anything was to be done by the agent except the ordinary act of offering to the government officials the property to be sold.

In this case,-however, the services to be performed were “ soliciting, advocating and procuring ” a contract and a right to use the street from the common council of the municipal corporation.

The express object was to influence the municipal corporate authorities of the city to grant a contract and the conduct of the plaintiff in his interviews with, the aldermen and councilmen, and the influence he endeavored to exercise over them, is a practical construction of what was intended by the parties and the object of the employment.

I also think the proof failed to establish that any contract was made with the defendant at the time of the alleged conversation with Hapgood. The defendant was not incorporated. Hapgood spoke in the first person. What he'said was: "I will pay you for your time and services and all expenses, and if you get the contract we will divide the commissions on the sale of the plant.” And again he said: “ Get the contract and I will do what is right by you;. we will divide the commission or sell the plant.”

There was thus no agreement on behalf of a company to be formed whereby the company on accepting the benefits of the contracts would be held liable for its obligations, and the form in which the compensation is to be made'would indicate that it was one-half of the commissions that Hapgood was to make or receive that was to be divided with plaintiff. The corporation, after it was formed, was the contracting party, sold the plant to the city of Utica, and received a certain consideration therefor. It received and could receive no commissions as it was the principal and made the sale. It was the broker or agent for the company who would receive the commission, and it is clear that the agreement that was made was to divide, not what the company should receive, but what Hapgood, individually, should receive.

Plaintiff, on cross-examination, was asked, Who got the commissions?” and answered, “ Nobody got the commissions, but there was $10,000 commission on the plant.”

If nobody got the commissions under the contract, as alleged in the complaint as amended, there was nothing to divide, and consequently plaintiff failed to show that he was entitled to recover from any one, and in no aspect of the case can it be held that the corporation that was not in existence at the time of the employment could be held liable on an agreement made between third parties to divide commissions for services to be rendered on a sale to be made by the corporation.

I think, therefore, the plaintiff failed to show a cause of action, and the complaint should have been dismissed. Exceptions sustained, new trial ordered; with costs to abide the event

Sedgwick, Oh. J., and Freedman, J., concur.


author: Sedgwick, Ch. J.

text:
    Mary McKay Greenwood et al., Ex’rs, Resp’ts, v. The Metropolitan Elevated R. Co. et al., App’lts.

      (New York Superior Court, General Term,

      Filed January 5, 1891.)

    Basements—Extinguishment oe.
    Certain premises on the corner of Church and Vesey streets fronting on Vesey were conveyed to plaintiff’s testator, and subsequently the adjoining premises on Vesey street were also conveyed to him. Held, that assuming that the latter premises had an easement of light over Church street, such easement was cut off by the conveyance of the first named premises without restriction, and was not revived by the subsequent conveyance to testator.

      Appeal from judgment entered against defendants upon verdict of jury, and from order denying motion for a new trial made upon the judge’s minutes.

      Edward B. Thomas, for app’lts; James M. Hunt, for resp’ts.
   Sedgwick, Ch. J.

The action was for damages from the defendants’ building the roadway and running their railroad immediately along the side of plaintiff’s premises in Church street.

The premises were on the southwest corner of Church and Yesey streets. There was one building upon them. They had been formerly owned by the corporation of Trinity Church, and then on a map made by it were known as lots Nos. 38 and 37. The premises are now known as No. 31 and No. 33 Yesey street. The Trinity Church corporation first conveyed the lot known as No. 37 on its map, and then by mesne conveyances it became the property of John Greenwood, of whose title the plaintiffs are the representatives.

The Trinity Church corporation afterwards conveyed in two parcels lot No. 38, and by mesne conveyances it became the property of John Greenwood At the time Greenwood went into possession there was upon the easterly half of lot No. 38, now No. 31, a dwelling-house which fronted on Yesey street. That dwelling-house has been taken down since and there has been built a single building fronting on Yesey street. The depth of the land is sixty-four feet on Church street The defendants’ road is on Church street, and the claim here is for damages for the impairment of the easement of light, etc., over that street.

On the trial, the plaintiffs were allowed to recover for a diminution of light in that part of plaintiff’s premises that was within the lines of lot No. 38.

Assuming that formerly there was an easement of light over Church street existing in favor of lot No. 38, it was possible for the owner of the lot to extinguish it by any method of dealing witli the property that would, for instance, convey the property without the appurtenant easement so that the grantee would not have such an appurtenance, and if he would not have it, it would not be revived, or rather revealed, by his conveyance. Corning v. Gould, 16 Wend., 535; Parker v. Foote, 19 id., 309; Crain v. Fox, 16 Barb., 184; Lattimer v. Livermore, 72 N. Y., 174.

It is apparent that enjoyment of lot No. 38 of light from Ohurch street as a right depended upon the rignt of that lot to prevent building upon No. 37 in such a way that the light would be cut off from No. 38, or to prevent any other use of the lot that would have that effect. But when the Trinity corporation conveyed to Greenwood No. 37, it became the right of Greenwood to cut off the light from No. 38. Myers v. Gemmel, 10 Barb., 537, and cases there cited. This was inconsistent with the continuance in lot No. 38 of a right to the easement, and when lot No. 38 was conveyed subject to this condition, it was conveyed without the appurtenance of the easement. And the subsequent conveyance to Greenwood did not make a new easement or did not create a right that had not been conveyed by Trinity corporation.

The jury were allowed to find damage from the diminution of light over the space that had been lot Ro. 38. For this reason there should be a reversal of the judgment and order and a new trial ordered, with costs to abide the event

Freedman, J., concurs.