author: Andrews, Ch. J.

text:
    Louis Greenblatt, App’lt, v. David Hermann, Resp’t.

      (Court of Appeals,

      Filed November 27, 1894.)

    1. - Vend on and Purchaser—Title.
    A purchaser of real estate, who refuses to take title upon the ground of a defect therein, must point out the objection and give proof tending to establish it, or to create such a doubt in respect thereto as to render the ■ title unmarketable.
    2. Same.
    If the defect or doubt is disclosed on the face of the record title, he need go no further ; but, if it depends upon some extrinsic fact not disclosed by the record, he must show the fact which justifies his refusal to accept the title tendered.
    3. Same.
    In order to relieve him from his purchase, the title must either be defective in fact, or so clouded by apparent defects, either in the record or by proof outside of the record, that prudent men, knowing the facts, would hesitate to take it.
    4. Same.
    A suspicion or conjecture, without any facts to support it, does not raise a reasonable doubt as to the validity of a title good upon the record.

      5. Executors, etc.—Sale of decedent’s real estate.
    Where the petition, in a proceeding for the sale of a decedent’s real estate for the payment of his debts, avers that certain persons named are heirs, the fair construction of the language is that such persons are “all the heirs,” and an express averment to that effect is not essential.
    Appeal from judgment of the general term of the supreme court in the first judicial department, entered upon an order, which affirmed a judgment in favor of defendant entered upon a decision of the court on trial at special term.

      Matthew Male and Henry S Van Buzer, for app’lt; Samuel H. Benton, for resp’t.

       Reversing 53 St. Rep. 421.

   Andrews, Ch. J.

This is an action by the vendee of a lot in the city of New York, under a contract of sale, against the vendor, and in the complaint relief is demanded adjudging specific performance or in the alternative, for the recovery of the amount paid by the plaintiff to the defendant on the purchase, with interest, and for damages and costs. The defendant’s title is derived under a sale by the administrators of Charles W. Nichols,, pursuant to a decree of the surrogate of Kings county, made August 10, 1881, in proceedings initiated in surrogate’s court by the administrators for the sale of the real estate of their intestate for the payment of debts. Subsequent to the sale under the decree and the purchase and conveyance of the lot to the defendant, and on the 18th day of April, 1892, the parties entered into the usual contract of-sale, whereby the defendant agreed to sell and the plaintiff to purchase the premises for the sum of $19,500, and the plaintiff paid thereon the sum of $1,500. Thereafter, on the 26th day of May, 1892, the day fixed for the completion of the contract, the defendant tendered to the plaintiff a deed good in form, and the plaintiff was ready and willing to pay the balance of the purchase money pursuant to the contract, but objected to the title on the ground that the proceedings for the sale of the real estate of the intestate, Charles W. Nichols, were defective, and that the surrogate acquired no jurisdiction to make the decree under which the defendant derives title, and that the title tendered was not marketable. The sole question now presented relates to the sufficiency of the title under the proceedings in the surrogate’s court. It is admitted that the intestate, Charles W. Nichols, at the time of his death, January 27, 1879, had good title to the lot in question, acquired by purchase and not by inheritance. He left no widow or lineal descendants, and no father, mother, brother or sister, and no descendant of either surviving him. Under the circumstances the real estate upon his death, by the express terms of the statute, descended to the brothers and sisters of the father and mother of the decedent in equal shares, and to their descendants in the same manner as if all such brothers and sisters had been brothers and sisters of the intestate. 1 Rev. St. 752, § 18.

The principal objection made to the title under the surrogate’s decree is that the petition of the administrator upon which the proceedings were founded, did not purport to set forth the names of “ all the heirs ” of the decedent, as required by subd. 8 of § 2752 of the Code of Civil Procedure, embraced in tit. 5, chap. 18, regulating proceedings in surrogates’ courts, for the sale of real property of decedents for the payment of debts; that only the collateral heirs of the father of the decedent are named in the proceedings, and that the record is silent as to the existence of collateral heirs of the mother, and that they are in no way accounted for. The plaintiff rests his objection to the title solely on the assumed imperfection disclosed on the face of the- record of the surrogate’s proceedings. It is not alleged in the complaint that the mother of the decedent had any brother or sister, or descendants of any brother or sister, nor was there any proof offered or given on the trial that there was, or ever had been, any heirs on the mother’s side entitled to take under the statute. The only point is that the record does not affirmatively exclude the inference that such heirs existed. Upon the case as presented, if the proceedings before the surrogate were in conformity to the statute, and it appears therefrom, or from the proofs taken before him that all the heirs of the decedent were named and cited, the objection taken to the title fails. There is no room for controversy that the proceedings in the surrogate’s court bound only parties or privies, and that if there are any heirs of the decedent who were not made parties thereto, or were not brought in, their interest in the premises was not concluded by the decree, but remains unaffected thereby, and did not pass by the sale and conveyance. But a vendee who refuses to take title upon the ground of defect therein, must point out the objection and give proof tending to establish it, or to create such a doubt in respect thereto as to render the title unmarketable. If the defect or doubt is disclosed on the face of the record title, he need go no further, but if it depends upon some extrinsic fact not disclosed by the record, he must show the fact which justifies his refusal to accept the title tendered.

There is no presumption that a title is defective which is supported by a perfect record. The petition to the surrogate, which lies at the foundation of the proceeding, did not in terms allege that the persons named therein comprised all the heirs of the decedent. The heirs named are persons who are descendants of the brothers and sisters of the father of the decedent. The alleged defect in the petition presented to the surrogate is its omission to state in terms that the persons named therein as heirs of the decedent comprised all the heirs of the decedent. It does not in terms refer to the mother or to any heirs on the mother’s side, neither expressly affirming or denying their existence. The petition alleges that, according to the best knowledge, information and belief of the petitioner, the decedent’s “heirs at law -are first cousins and descendants of first cousins,” naming them, being about fifty in all. Section 2752 of the Code, to which reference has been made, declares that the petition “ must set forth as nearly as the petitioner can, upon diligent inquiry, ascertain them,” certain matters, and among others (subd. 3) the names of “ all the heirs and devisees of the decedent.” It is insisted that the allegation' in the petition that the decedent’s “ heirs at law ” are the persons, named, is not a compliance with the requirement of the statute, and that the statute can only be satisfied by an express averment that the persons named are “ all the heirs.” It will be observed that § 2752 does not in terms require that the petition should aver that all the heirs are named, but that all the heirs shall be named. If, in fact, all the heirs are named in a petition, although there is no express averment that they comprise all the heirs, would the proceedings founded thereon be void by reason of the absence of such express allegation ? However this may be, we are of opinion that the fair and just construction of the language of the petition, that the heirs of the decedent are the persons named, is that they are all the heirs, and that it is an expression of equivalent import. The Revised Statutes, regulating proceedings in surrogates’ courts for the sale of the real estate of decedents for the payment of debts, prescribed that the petition should set forth “ the names and ages of the devisees, if any, and of the heirs of the deceased.” 2 Rev. Stat. 100, § 2, subd. 5. The change in the language of the Code was not, we think, intended to change and does not change the meaning of the former provision. The necessary implication from the language in the Revised Statutes is that all the heirs shall be named. But it is clear, we think, that under the Revised Statutes, a petition stating that the heirs are certain persons named, would be sufficient. It would mean that they were all the heirs. It is the rule that proceedings of this character are to be strictly construed, but this does not mean that a substantial compliance with the statute is not sufficient, or that the allegations are not to be given their natural import. Our conclusion is that the petition did in substance aver that the persons named were all the heirs of the decedent, and that the record on its face disclosed no defect in the title tendered.

The point that at least the title was doubtful, and, therefore, unmarketable, rests upon the possible existence of heirs on the mother’s side, not brought into the proceedings. If their existence had been shown, or evidence given rendering it probable that such heirs were in being, the plaintiff would have been entitled to relief. It has been often said that the purchaser is entitled to a marketable title. The title tendered need not in fact be bad in order to relieve him from his purchase, but it must either be defective in fact, or so clouded by apparent defects, either in the record or by proof outside of the record, that prudent men, knowing the facts, would hesitate to take it. Fleming v. Burnham, 100 N. Y. 1; Moore v. Williams, 115 id. 586; 26 St. Rep. 259. In the present case there is no presumption in the absence of proof that the mother of the decedent had brothers or sisters, or descendants of either. The title is not doubtful by reason of any fact shown, or by reason of any inference from any such fact. It is a possibility merely that such heirs may exist. But the plaintiff has not seen fit to give any proof on the subject, and has left it to conjecture merely, and a suspicion or conjecture, without any facts to support it, does not raise a reasonable doubt as to the validity of a title good upon .the record. There are some subordinate objections made to the record in the surrogate’s court, but they are so unsubstantial that they do not require specification.

We think it would be in accordance with equitable principles to permit the plaintiff now to take the title tendered. The objection taken by him was not wanton or frivolous. The title had once before been rejected by competent conveyancers upon the ground taken by the plaintiff, and this was known to him when his objection was made. Both parties in their pleadings ask for specific performance against the other, showing that neither had elected to consider the contract at an end by the tender and rejection of the deed. The plaintiff has at all times been ready to pay the balance of the purchase money on receiving a good title. We fully concur with the general term that the plaintiff made no case for recovering back the purchase money. But we think the case should go back for a new trial, in order to enable the plaintiff to have a decree for specific performance, if it shall turn out that there has been no change of circumstances which would make such relief at this time inequitable. The plaintiff, however, should pay the entire costs of the litigation in all courts.

The judgment should be reversed and new trial granted, with costs to be paid by the plaintiff in all courts.

All concur, except Bartlett, J., who dissents on ground complaint was improperly dismissed.

Judgment accordingly.


source: Caselaw Access Project

author: Beckham, J.

license: Public Domain

text:
    Lizzie Breil, Resp’t, v. The City of Buffalo, App’lt.

      (Court of Appeals,

      Filed December 11, 1894.)

    Municipal corporation—Negligence—Notice.
    In an action to recover for injuries alleged to have resulted from defendant’s negligence in permitting a pile of dirt to remain, in the night time, in one of its streets, without a light or other danger signal, of which pile of dirt it had no actual notice, the evidence was held insufficient to charge defendant with constructive notice.
    Appeal from judgment of the general term of the supreme court, in the'fifth judicial department, entered upon an order, which affirmed a judgment in favor of plaintiff, entered upon a verdict and also affirmed an order denying a motion for a new trial.

      Frank G. Laughlin, for app’lt; Wallace Thayer, for resp’t.

      Reversing, 52 St. Rep. 292.

   Beckham, J.

A careful perusal of all the evidence in this case leads us to the conclusion that the plaintiff failed to make out a cause of action against the defendant, and that the defendant’s motion for a non-suit should, therefore, have been granted.

The evidence, in substance, is that the dirt was brought to the street opposite the house of Mr. Franklin, and was there unloaded and was then drawn in wheelbarrows into the yard belonging to him. There were three men engaged in wheeling it away most of the time. The dirt that was drawn to the street was thus being continually drawn away for the purpose of filling in the lot. At times it would seem that the dirt was drawn to the street faster than it was wheeled away, and in that manner it accumulated in size during the day. There was, however, no substantial proof that out of the three or four days upon which the drawing was done, the dirt drawn on any one day to the street was not removed on that same day with the exception of the day preceding the night of the accident. There was no evidence that the defendant had any actual notice of the pile of dirt, and we are of opinion there is nothing in the evidence upon which to charge the city with constructive notice of the existence of an obstruction in the street at night. So far as hauling the dirt in the daytime to the street opposite Franklin’s lot is concerned, there was nothing illegal or improper in that act, Franklin desired to fill in his lot, and to that end he wanted this dirt. It was unloaded at the spot most convenient for that purpose, and men were at once employed to wheel it to the lot, and so constructive notice to the city would be nothing more than notice that dirt was being drawn to a spot in a public street opposite the lot of an owner, and that such dirt was being drawn away by the lot owner and spread upon his lot. The act of Franklin in permitting the dirt to remain in the street on the night of the accident was not sufficient to charge the city with any negligence whatever. Under the circumstances there could have been no presumption that the dirt would be permitted to remain 'over night even if the city officers had seen it. there during the day. ■ -

We think the plaintiff failed to prove the defendant guilty of any negligence, and the judgment against it must, therefore, be reversed and a new trial granted, with costs to abide the event.

All concur.

Judgment reversed.


text:
    Supreme Court—General Term—First Departmemt.
    Filed February, 1894.
    Michael Dilworth, App’lt, v. Mayor, etc., of City of New York, Resp’t.
   No opinion. Judgment affirmed with costs.


text:
    Filed March, 1894.
    Robert O. Babbitt, App’lt, v. William W. Gibbs, Resp’t.
   No opinion. Judgment affirmed, on referee’s opinion, with costs.


text:
    Livingston Beekman, as Administrator, etc., App’lt, v. Horn Silver Min. Co., Resp’t.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Walter C. Stokes et al., App’lts, v. James M. Waterbury et al., Resp’ts.
   No opinion. Order modified by striking out paragraphs numbered 7, 8, 9, and 10, and affirmed as modified, without costs.


text:
    John C. Wilmerding, App’lt, v. Marshall Field et al., Resp’ts.
   No opinion. Order reversed, with $10 costs and disbursements, and motion denied, with $10 costs.


text:
    Filed April 13, 1894.
    Frederick A. Bellevue v. Halcyon Skinner.
   No opinion. Motion granted by default, with $10 costs and disbursements.


text:
    John T. M. Brewster, Resp’t, v. William Barlow et al., App’lts.
   No opinion. Order reversed, with $10 costs and printing disbursements, unless, within 30 days, the plaintiff obtain an order of the court amending the original summons so as to conform to copy served, and pay to defendant costs of this appeal and of such motion; in which event, the order appealed from is affirmed, without costs.


text:
    Frantz Chwatal, App’lt, v. George Schreiner, Resp’t.
   No opinion. Judgment affirmed, with costs.


text:
    George B. Clarke, App’lt, v. Alice A. Schell, Resp’t.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Peter I. Clerihew, Resp’t, v. Henry W. Sharpless, App’lt.
   No opinion. Judgment affirmed, with costs.


text:
    Frank A. Connoly, Resp’t, v. American Casualty Ins. Co., App’lt.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Samuel P. Dexter et al., Resp’ts, v. Louis Adler et al., App’lts.
   No opinion. Motion for reargument denied, with $10 costs.


text:
    Henry Harbeck, App’lt, v. Sarah K. Pupin et al., Resp’ts.
   No opinion. Judgment affirmed, with costs, on opinion handed down on previous appeal.


text:
    Frederick W. Kalbfleisch, App’lt. v. Malvern Hill Marl & Phosphate Co., Resp’t.
   Mem. not published, by order of the court. Judgment affirmed, with costs.


text:
    Matter of Manhattan Ry. Co. v. Sarah E. Youmans.
   No opinion. ' Order affirmed, with $10 costs and disbursements.


text:
    Matter of Charles L. Randall.
   No opinion. Order reversed, with $10 costs and disbursements against the respondent personally, and a reference ordered to ascertain the amount of the attorney’s claim, the referee to be appointed upon the entry of the order hereon.


text:
    Charles B. Merwin, Resp’t, v. John H. Newton, App’lt.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Michael O’Brien, App’lt, v. Robert J. Smith, Resp’t.
   Opinion per Curiam, not published, by order of the court. Judgment affirmed^ with costs.


text:
    The People ex rel. Equitable Gas Co. v. Edward Barker et al.

   Order affirmed, without costs. Opinion by Van Brunt, P. J. The opinion in this case was withdrawn.


text:
    The People ex rel. Scudi, App’lt, v. Dalton et al., Resp’ts.
   No opinion. Writ dismissed, with costs.


text:
    The People ex rel. Thomas J. Kelly, App’lt, v. Examining Board of Plumbers, Resp’t.
   No opinion. Order affirmed, without costs.


text:
    The People ex rel. Thomas J. Kelly, v. George D. Scott et al.

   No opinion. Order reversed, with $10 costs and disbursements; respondents to file return within 20days from entry of order hereon.


text:
    Nicholas Quackenbos, App’lt, v. Grace C. Minton, Resp’t.
   No opinion. Order reversed, without costs, and case remitted to special term for decision on the merits.


text:
    Edward S. Stokes, Resp’t, v. William E. D. Stokes, App’lt.
   No opinion. Order affirmed, with $10 costs and disbursements.


author: Per Curtam.

text:
    Filed May 18, 1894.
    Louis P. Whiteman, App’lt, v. Saratoga K. S. Co. (First Nat. Bank, Resp’t).

      B. A. Mullally, for app’lt; Walter M. Bosebault, for resp’t.
   Per Curtam.

An affirmance of the order under review is required by the decision of this court in Manufacturers’ Bank v. Hall, 60 Hun, 466; 39 St. Rep. 463. The order should therefore be affirmed, with $10 costs and printing disbursements.


text:
    Michael L. Woods et al., Resp’ts, v. Perez Dickinson, App’lt.
   No opinion. Judgment affirmed, with costs, on opinion of referee; Follett and Parker, JJ., concurring; Van Brunt, P. J., dissenting, on the ground that § 190 of the Revised Statutes of the United States applies, and prevents recovery.


text:
    Filed June 15, 1894.
    Arrow Steamship Co., Resp’t, v. James G. Bennett, App’lt.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    David E. Austen, as Receiver, etc., Resp’t, v. George V. Hecker Co., App’lt.
   No opinion. Order reversed, with $10 costs and disbursements.


text:
    David Belasco, Resp't, v. N. K. Fairbank, App’lt.
   No opinion. Order reversed, with $10 costs and disbursements, and motion granted.


text:
    Joseph Bernard, App’lt, v. Leah Bernard, Resp’t.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Michael Bowen, Pl’ff, v. Michael Sweeney, Def’t.
   No opinion. Motion dismissed, with $10 costs and disbursements.


text:
    Canadian Agricultural Coal & Colonization Co., Limited, v. Joseph L. Spofford.
   No opinion. Order reversed, with $10 costs and disbursements, and motion denied, with $10 costs, and with leave to renew upon payment of those costs.


text:
    Stephen G. Condit, App’lt, v. Charles Wahlig et al., Resp’ts.
   No opinion. Judgment affirmed, with costs.


text:
    Robert J. Dean et al., App’lts, v. Peter C. Collignon et al., Resp’ts.
   No opinion. Order reversed, with $10 costs and disbursements.


text:
    Joan B. M. Duche et al., Resp’ts, v. Theodore Lindberg, App’lt.
   No opinion. Order imposing terms on opening default reversed, with $10o costs and disbursements Order denying motion to open default reversed, with- • out costs, but with disbursements.


text:
    Cornelius W. H. Elting, Resp’t, v. Charles W. Dayton, App’lt.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Thomas K. Foster, Resp’t, v. New York El. R. Co., App’lt.
   No opinion. Judgment affirmed, with costs.


text:
    Frederick L. Gilbert v. James M. Fitzgerald.
   No opinion. Motion denied.


text:
    H. B. Claflin Co. v. John Courtney, as Sheriff, etc.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Charles P. Hemenway, Resp’t, v. Morris F. Knudson, App’lt.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Isaac K. Kohn, v. Frederick H. Kellogg.
   No opinion. Motion granted, on payment of $10 costs.


text:
    David McClure, Resp’t, v. Henry J. Davison, App’lt.
   No opinion. Order affirmed, with costs.


text:
    John Mahon, Resp’t, v. Mary Tracy, App’lt.
   No opinion. Judgment affirmed, with costs, on opinion of special term.


author: Per Curiam.

text:
    Matter of Board of Rapid Transit Com’rs.

      J. M. Bowers, for Commisssoners; W. II. Clark, Corp. Counsel, for City.
   Per Curiam.

We think that an allowance to each commissioner of $1,250 in addition to the sum allowed upon the previous application would, under the circumstances, be reasonable. This sum is proportionately less than that previously awarded. At that time, however, it was expected that the fees of the commissioners would be paid by purchasers of the franchise. That hope is now dissipated, and the expense is to be borne by the city. It is to be borne, too, without corresponding value, for the new commission undoubtedly resulted from the failure of it predecessor to realize the objects for which it was created. As Mr. Spencer resigned in the month of June, 1893, the sum awarded should be apportioned between himself and his successor. We think that a fair apportionment would be an allowance to Mr. Spencer of $820, and to Mr. Porter of $430. An allowance of $1,250, in addition to the previous allowance of $5,000, is accordingly made to each of the following commissioners: Messrs. Steinway, Starin, Inman, and Bushe. An allowance of $820, in addition to the previous allowance of $5,000, is made to Mr. Spencer, and an allowance of $430 is made to Commissioner Porter.


text:
    Matter of Brandt.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Matter of Bremer.
   No opinion. Reference ordered. Section 132, Code Crim. Proc., confers jurisdiction.


text:
    Matter of Forty-second Street M. R. Co.
   ‘ No opinion. The court is of the opinion that this application should not be entertained at the present time, for the reasons stated orally upon the argument.


text:
    Matter of Jones.
   No opinion. Decree reversed, and will admitted to probate.


text:
    Nason Manuf’g Co., Resp’t, v. Pocantico Waterworks Co., App’lt.
   No opinion. Judgment affirmed, with costs.


text:
    Miles M. O’Brien et al., as Receivers, etc., Resp’ts, v. Joseph F. Blaut et al., App’lts.
   No opinion. Order reversed, with $10 costs and disbursements, and case sent back to special term for further action.


text:
    Miles M. O’Brien et al., as Receivers, etc., Resp’ts, v. Simon Ottenburg et al., App’lts.
   No opinion. Order reversed, with $10 costs and disbursements, and case sent back to special term for further action.


text:
    The People v. Henry M. Goldfoglet.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Nicholas Quackenboss, Resp’t, v. Grace G. Martin, App’lt.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Henry P. Rogers et al., Resp’ts, v. Frank Y. Maguire, App’lt.
   No opinion. Order reversed, with $10 costs and disbursements, and motion denied, with $10 costs.


text:
    George P. Rowell et al., App’lts, v. Joseph E. Janvrin, Resp’t.
   No opinion. Judgment affirmed, w’ith costs.


text:
    George P. Rowell et al., App’lts, v. Edward W. Lambert, Resp’t.
   No opinion. Judgment affirmed, with costs.


text:
    George P. Rowell et al., App’lts, v. Henry Tuck, Resp’t.
   No opinion. Judgment affirmed, with costs.


text:
    George P. Rowell et al., App’lts, v. Gustavus S. Winston, Resp’t.
   No opinion. Judgment affirmed, with costs.


text:
    William H. Schecker, App’lt, v. Edward J. Woolsey, Resp’t.
   No opinion. Order modified by allowing service of answer as. proposed, and affirmed as modified, without msts.


text:
    Alfred H. Smith et al., App’lts, v. American Turquoise Co., Resp’t.
   No opinion. Appeal dismissed, with $10 costs.


text:
    Irving Smith, Resp’t, v. Charles A. Seymour, App’lt.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    James Stephens et al., App’lts, v. Waddell Entz Co., Resp’t.
   No opinion. Order reversed, with $10 costs and disbursements, and the attachment reinstated.


text:
    Sarah B. Tucker et al. v. Metropolitan El. Ry. Co.
   No opinion. Motion for reargument denied, with $10 costs.


text:
    Judson A. Wain, as Receiver, etc., Resp’t, v. National Park Bank, App’lt.
   No opinion. Order affirmed, with $10 costs and disbursements, and with leave to renew application upon proper papers.


text:
    William B. White et al., Resp’ts, v. Mignon C. Barnard, App’lt.
   No opinion. Order reversed, with $10 costs and disbursements, and motion denied, with $10 costs of motion to abide event.


text:
    General Term — Second Department.
    Filed February 12, 1894.
    Henry Bereau, App’lt, v. Daniel O’Connell, Resp’t.
   No opinion. Reargument ordered.


text:
    William Bransdorf et al., v. John H. Bransdorf.
   No opinion. Judgment affirmed for failure to submit papers according to stipulation.


text:
    Alethia Dayton v. Kings County El. R. Co.
   No opinion. Affirmed by default.


text:
    Newbold T. Lawrence et al., App’lts, v. Town of Hempstead, Resp’t.
   Reargument ordered. Opinion not to be printed, by direction of judge.


text:
    Filed June 18, 1894.
    Francis Dent v. Stephen V. Ryan.
   No opinion. Motion denied.


text:
    Joseph F. Durfey v. George M. Dieter.
   No opinion. Order affirmed, with costs and disbursements.


text:
    James Finlay et al. v. John J. Leary.
   No opinion. Order affirmed, with costs.


text:
    Leonora S. Gray v. William T. Baker et al.

   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Albert E. Gunther v. Emma S. Gunther.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Frank W. Miller v. Cornelius Diel.
   No opinion. Order affirmed, with costs.


text:
    Frederick J. Stubing, Resp’t, v. Metropolitan Life Ins. Co., App’lt.
   No opinion. Motion for leave to appeal to the court of appeals granted.


text:
    Filed July 27, 1894.
    Brooklyn Trust Co., Resp’t, v. Mary A. Wood, App’lt.
   No opinion. Judgment affirmed, with costs.


text:
    Anthony Klemm, as Administrator, etc., Resp’t, v. New York Cent. & H. R. R. Co., App’lt.
   No opinion. Motion for reargument granted.


text:
    The People ex rel. Philip Binpo v. John Hoag, as County Treasurer, etc.
   No opinion. Order affirmed.


text:
    The People ex rel. John Koch v. Board of Excise of Town of North Castle.
   No opinion. Order affirmed.


text:
    Tucker Electrical Const. Co., Resp’t, v. Thomas Dobbins, App’lt.
   No opinion. Judgment and order affirmed, with costs.


text:
    General Term—Third Department.
    Filed February, 1894.
    Nathan R. Curtis, Resp’t, v. Delaware & H. Canal Co., App’lt.
   No opinion. Judgment affirmed, with costs. Mayham, P. J. dissenting.


text:
    Orrin J. David, Resp’t, v. Marshall Arnold, App’lt.
   No opinion. Judgment affirmed, with.costs.


author: Mayham, P. J.

text:
    Filed May 26, 1894.
    Robert Dansinger et al., Resp’ts, v. Edward C. White, App’lt.

      8. & L. M. Brown, for app’lt; Young .& Kellogg (L. H. Northwp, of counsel), for resp’ts.
   Mayham, P. J.

The conclusions of law reached by the learned judge who tried this case seems to be the proper legal deductions, based upon the facts found by him. The facts found by the judge seem to be based upon undisputed evidence, or upon conflicting evidence, upon which a finding either way would be sustained on appeal. We have carefully examined the various objections and exceptions made by the defendant to the rulings of the trial judge and find no error for which the judgment should be reversed. An opinion, therefore, seems unnecessary. Judgment affirmed, with costs.


text:
    Filed July 14, 1894.
    Durward E. Burchell, Resp’t, v. James E. Green et al., App’lts.
   No opinion. Judgment affirmed, with costs.


text:
    John S. Cronin, App’lt, v. Johanna C. Crooks, Resp’t.
   No opinion. Order amended by adding at the end thereof, after the words “printing disbursements,” the following: “ Upon the ground that the provisions of § 631 of the Code of Civil Procedure are mandatory, and that no ground was stated in said warrant of attachment for the granting of the same, for the reason that the statement in the alternative stated neither one fact or the other, and, for that reason, the order should be affirmed.”


text:
    Warren Dake, App’lt. v. Prescott Hall Butler, Resp’t.
   No opinion. Judgment affirmed, with costs.


text:
    Catharine A. Garlock, Resp’t, v. Valentine O. Garlock, App’lt.

      G.E. Phillips {Z. 8. TFesiJjwA of counsel), for app’lt; I). 8. Mon-el, for resp’t.
   Mayham, P. J.

On a careful examination of the record on this motion, we can find no legal ground for reversal of the order made- at the special term, from which this appeal is taken. Order affirmed, with $10 costs and printing disbursements.


text:
    Elvira Harper, App’lt, v. Elma A. Hart, Resp’t.
   No opinion. Order affirmed, with $10 costs and printing and other disbursements.


text:
    Mary C. Harris v. James H. Kenyon et al.

   No opinion. Order affirmed, with $10 costs and printing and other disbursements.


text:
    Philemon Heath, as Administrator, etc., App’lt, v. Agalite Fibre Co., Resp’t.
   No opinion. Judgment affirmed, with costs.


text:
    Maria Ives, Resp’t, v. Metropolitan Life Ins. Co., App’lt.
   No opinion. Motion for leave to go to the court of appeals granted.


text:
    Susan B. Jones v. Industrial Ben. Ass’n.
   No opinion. Judgment affirmed, with costs.


text:
    Ludlow Valve Manuf’g Co., App’lt, v. New York City Water Supply Co. et al., Resp’ts
   No opinion. Order affirmed, with $10 costs and printing and other disbursements.


text:
    Matter of Isaac Le Roy.
   No opinion. Order affirmed, with $10 costs and printing and other disbursements.


text:
    Matter of National Electric Manuf’g Co.
   No opinion. Order affirmed, witli $10 costs and printing and other disbursements.


text:
    Matter of Probate of Will of William O’Brien.
   No opinion. Decree affirmed, without costs.


text:
    Arthur R. Peck, App’lt, v. Johanna Dieterich et al., as Executors, etc., Resp’ts.

      Jacob W. Clute, for app’lt; Walter Briggs, for resp’ts.
   Mayham, P. J.

While the order for the cash register, signed by the defendant, referred to a sample machine exhibited to him at the time of signing the same, it also contained a provision that the register was-to be delivered in good working condition. There was evidence before the jury from which they could reasonably find that that provision of the order was not complied with. The jury having reached that conclusion by their verdict, we think the county court was right in affirming the judgment entered upon this verdict, within § 3068 of the Code of Civil Procedure. Judgment affirmed, with costs.


text:
    Frank H. Pettee, Resp’t, v. Mary H. Pettee, App’lt.
   No opinion. Motion for leave to go to the court of appeals denied, with $10 costs.


text:
    Otis A. Tefft v. John Donnelly.
   No opinion, Judgment affirmed, with costs.


text:
    Hiram Tompkins v. Cornelius Sheehan.
   No opinion. Reargment ordered.


author: Herrick, J.

text:
    M. Francis Wager, Resp’t, v. Thomas B. Link et al., App’lts.

      Warren, Patterson & Faulkner (Charles B. Patterson, of counsel), for app’lts; G. B. Donnan and B. B. Harder, resp’t.
   Herrick, J.

The decision of the court of appeals (134 N. Y. 126; 45 St Rep. 584), upon the former appeal in this action, it seems to me, disposes of all there is in this case. The case is the same in all the essential particulars now as it was when it was before the court before. The judgment should be affirmed.


text:
    Herbert Waring, App’lt, v. D. & H. C. Co., Resp’t.
   No opinion. Judgment affirmed, with costs.


text:
    John T. Williams, Resp’t, v. Calvin Dater, App’lt.
   No opinion. Judgment affirmed, with costs.-


text:
    General Term—Fifth Department.
    Filed January 18, 1894.
    Lumber Exch. Bank et al., Resp’ts, v. Oliver A. Jenkins, App’lt.
   No opinion. Order appealed from affirmed, with costs, on the opinion of Childs, J., at circuit.


text:
    Filed March 27, 1894.
    Arthur H. Allen et al., Resp’ts, v. Lydia C. Davis et al., Resp’ts, and Edmund C. Whitney, App’lt.
   No opinion. Order appealed from affirmed, with $10 costs and disbursements, on opinion of Green, J., at special term.


text:
    Filed June 20, 1894.
    Auburn Button Co., App’lt, v Philip L. Silvester et al., Resp’ts.
   No opinion. Motion to amend decision granted, so as to show that the judgment be reversed on questions of fact, as well as questions of law, but on condition that the defendant, if so advised, may discontinue his appeal to the court of appeals without costs of the appeal.


text:
    Theodore Bacon et al., Resp’ts, v. Belle N. Whitney et al., App’lts.
   No opinion. Judgment appealed from affirmed, with costs, on the opinion of Bradley, J., at special term.


text:
    Bloom v. National Union Benefit Loan Co.
   No opinion. Motion to strike case from the calendar, and for affirmance granted, with costs, unless papers are served on or before the second Friday of the term.


text:
    Sarah Brooks, Resp’t, v. Benjamin Brooks, Appl’t.
   No opinion. Judgment appealed from affirmed, with costs.


text:
    John Burton, Resp’t, v. Peter V. Egbert, App’lt.
   No opinion. Judgment of the county court of Cayuga county appealed from affirmed, with costs.


text:
    John Butscheck, App’lt, v. Vacuum Oil Co., Resp’t.
   No opinion. Plaintiff’s motion for a new trial denied, and judgment ordered for the defendant on the verdict, on the authority of Mahoney v. Vacuum. Oil Co., 76 Hun, 579; 58 St. Rep. 279.


text:
    Chester W. Chapin v. Niagara Racing Fair-Grounds Ass’n.
   No opinion. Order appealed from affirmed, with $10 costs and disbursements.


text:
    James H. Clark, Resp’t, v. City of Rochester, App’lt.
   No opinion. Motion to strike case from the calendar and for affirmance granted, on default.


text:
    M. Wallace Clark, App’lt, v. Eliza W. Clark, Resp’t.
   No opinion. Judgment appealed from affirmed, with costs, on the opinion of Bradley, J:, at special term.


text:
    John F. Dolan, Resp’t, v. John C. Rogers, App’lt.
   No opinion. Judgment appealed from affirmed, on the'opinion of the referee.


text:
    Joseph Dorr, Resp’t, v. German-American Brewing Co., App’lt.
   No opinion. Judgment and order appealed from affirmed.


text:
    Eastman Kodak Co., Resp’t, v. Henry M. Reichenbach et al., App’lts.
   No opinion. Judgment appealed from affirmed, with costs, on the opinion of Adams, J., at,the special term.


text:
    Edward Einstein, App’lt, v. Rochester Gas and Electric Co. et al., Resp’ts.
   • No opinion. Motion for leave to appeal to the court of appeals granted, for the reason that, in our opinion, the question arising in the ease is of sufficient importance to render a decision of that court desiriible before proceeding further.


text:
    Ida Green, Resp’t, v. Middlesex V. R. Co., App’lt.
   No opinion. Motion to strike case from the calendar and for affirmance granted, with costs, unless printed papers are served on or before the second Thursday of the term.


text:
    Alice Harmon, by Guardian, etc., Resp’t, v. N. Y. C. & H. R. R. R. Co., App’lt.
   No opinion. Judgment and order appealed from reversed, and new trial granted, costs to abide the event, unless within twenty days the respondent stipulates to reduce tbe recovery of damages to $4,000, in which case the judgment be so modified, and as modified affirmed, without costs of this appeal to either party.


text:
    Allen J. Hastings, Resp’t, v. Brooklyn Life Ins. Co , App’lt.
   No opinion. Judgment and order appealed from affirmed.


text:
    Annie M. Keating, Resp’t, v. William B. Hayes, App’lt.
   No opinion. Order appealed from affirmed, with $10 costs and disbursements. See 61 St. Rep. 419.


text:
    William Kiernan et al., App'lts, v. Agricultural Ins. Co., Resp’t.
   No opinion. Motion for reargument granted.


text:
    Mary A. Knope, Resp’t, v. Joseph Nunn, App’lt.
   No opinion. Motion to strike case from the calendar and for affirmance denied, without costs.


text:
    Charles S. Laney, Resp’t, v. Rochester R. Co., App’lt.
   No opinion. Judgment appealed from affirmed, with costs, on the opinion of the referee.


text:
    John W. Leehan, by Guardian, etc., Resp’t, v. Lake Shore & M. S. R. Co., App’lt.
   No opinion. Judgment and order appealed from affirmed.


text:
    Matter of the Guardianship of Lucinda F. Emerick.
   No opinion. Order of the surrogate of Monioe county affirmed, without costs.


text:
    Matter of Probate of Will of Simeon Kriebler, Deceased.
   No opinion. Motion to dismiss appeal granted, on default.


text:
    Walter A. Meklan, App’lt, v. Buffalo Spring & Gear Co., Resp’t.
   No opinion. Judgment and order appealed from affirmed.


text:
    Henry H. Messerschmitt, Resp’t, v. Travelers’ Ins. Co. of Hartford, App’lt.
   No opinion. Judgment appealed from affirmed.


text:
    Laurella Morris, as Administratrix, etc., Resp’t, v. Lake Shore & M. S. R. Co., App’lt.
   No opinion. Judgment and order appealed from affirmed.


text:
    William W. Mumford, as Receiver, etc., App’lt, v. George W. Crouch et al., Resp’ts.
   No opinion. Judgment appealed from affirmed, with costs.


text:
    George C. Murphy, App’lt, v. N. Y., L. E. & W. R. R. Co., Resp’t.
   No opinion. Order appealed from affirmed, on the opinion of this court in same case.


text:
    N. Y. C. & H. R. R. R. Co., App’lt, v. Trustees of Village of Canandaigua, Resp’t.
   No opinion. Judgment appealed from affirmed, with costs.


text:
    John O. O’Connell, Resp’t, v. George A. Lee, App’lt.
   No opinion. Motion to strike case from the calendar and for affirmance granted on default.


text:
    Edward F. Parker et al., Resp’ts, v. Mary J. Bowman, App’lt.
   No opinion. Judgment appealed from affirmed.


text:
    The People ex rel. Bernard Ritzenthaler, as Overseer, etc., v. Edward F. Higgins et al.

   No opinion. Motion for leave to appeal to the court of appeals granted.


text:
    Sophia Quigley, Resp’t, v. City of Rochester, App’lt.
   No opinion. Ortler granting new trial appealed from affirmed, with costs of this appeal to the respondent to abide the event.


text:
    George F. Ramsay et al., Resp’ts, v. Keystone Gas Co., App’lt.
   No opinion. Judgment and order appealed from affirmed.


text:
    Rochester & Kettle Falls Land Co., Resp’t, v. R. Irving Davis, App’lt.
   No opinion. Judgment appealed from affirmed, with costs, on the opinion of Bradley, J., at special term.


text:
    Wilbert Shampagne, Resp’t, v. Patrick Burk, App’lt.
   No opinion. Judgment of the county court of Monroe county appealed from affirmed, with costs.


text:
    Walter H. Sherman, Resp’t, v. Julius Robertson, App’lt.
   No opinion. Order appealed from affirmed, with $10 costs and disbursements.


text:
    Vernon E. Smith, Resp’t, v. Anna B. Weaver, App’lt.
   No opinion. Judgment of the county court of Chautauqua county appealed from affirmed, with costs.


text:
    Israel Snow, Resp’t, v. Buffalo Creek R. Co., App’lt.
   No opinion. Order appealed from affirmed, with $10 costs and disbursements.


text:
    Ann Amelia Sykes et al., as Executors, etc., Resp’ts, v. Silver Lake Ice Co., App’lt.
   No opinion. Judgment and order appealed from affirmed.


text:
    William M. Tisdal, Resp’t, v. N. Y. C. & H. R. R. R. Co., App’lt.
   No opinion. Judgment and order appealed from affirmed.


text:
    George Werner v. City of Rochester.
   No opinion. Motion lor leave to appeal to the court of appeals granted.


text:
    Edmund C. Whitney et al., App’lts, v. Joseph Davis et al., Resp’ts.
   No opinion. Judgment appealed from affirmed on the merits, with costs.


text:
    Lizzie Wilson, App’lt, v. Maria Heath, as Executrix, etc., Resp’t.
   No opinion. Motion to strike case from the calendar and for affirmance granted, on default.


text:
    Jennie T. A. Wright, App’lt, v. Consolidated Sav. & Loan Ass’n, Resp’t.
   No opinion. Judgment appealed from affirmed.


text:
    New York Superior Court—General Term.
    Filed June 11, 1894.
    John W. Kissam v. Andrew J. Ditman.
   Per Curiam.

The respondent should have obtained an order declaring the case on appeal abandoned, and then moved under the second subdivision of §

6 of the rules of this court. The motion to dismiss the appeal should be denied, but without costs.


text:
    Filed July 2, 1894.
    Jacob Bookman, Resp’t, v. N. Y. El. R. Co. et al., App’lts.
   Per Curiam.

The judgment should be affimed, with costs.


text:
    Henry Holly et al., Resp’ts, v. Manhattan Ry. Co., App’lt.
   Per Curiam.

The trust clause in the will of Robert Carnley, deceased, cannot be construed as partly valid and partly invalid. The trust attempted to be created constitutes a scheme which permeates the entire will to such an extent that the will, as a whole, is either valid or invalid in this respect. In either case, all the necessary parties in interest are before the. court as plaintiffs, with others, and the defendant is fully protected by the decision and the judgment herein. There is no merit in the claim that the judgment is assailable on the ground that there are remainder-men who were not made parties, and that in their absence the court below erred in refusing to assess damage upon the theory that the plaintiffs Margaret Ann Holly, Frances Sackett and Emma Holly are only life tenants. Tne findings as to the damages are sustained by the evidence. Upon the whole case, no error appears which calls for reversal. The judgment should be affirmed, with costs.


text:
    August Klipstein, Resp’t, v. New York El. R. Co., App’lt.
   Per Curiam.

The judgment and order should be reversed, and a new trial ordered, with costs to the appellant to abide the event, unless the respondent, by stipulation, consents to deduct from the judgment tlie sum allowed by the jury for interest, and the interest, if any, computed upon such sum from the time of the rendition of the verdict. If such stipulation be given, and reduction made, the judgment and order should be affirmed, without costs upon this appeal.


text:
    Metropolitan Life Ins. Co., Resp’t, v. Manhattan Ry. Co. et al., App’lts.
   Per Curiam.

The orders appealed from should be affirmed, with $10 costs and disbursements.


text:
    James Saxton, Resp’t, v. N. Y. El. R. Co. et al., App’lts.

      Davies, Short & Townsend, for app’lts; E. W. Tyler, for resp’t.
   Per Curiam.

The judgment should be affirmed, with costs.


author: Freedman, J.

text:
    Leocadie Schaad, Resp’t, v. George M. Edebohls, App’lt.

      Barrington & Shannon, for app’lt; 0. B. Boyd, for resp’t.
   Freedman, J.

The complaint states but one cause of action, and it is sufficiently definite and certain. If the defendant had complained of the prolixity and redundancy of the complaint, he might have met with better success. What he real'y sought to obtain was the particulars of certain allegations, and his remedy for that purpose was by motion for a bill of particulars. The order should be affirmed, with $10 costs and disbursements.


text:
    Robert Fitch Shepard et al., Resp’ts, v. Metropolitan El. Ry. Co. et al., App’lts.
   No opinion. The judgment herein must be affirmed, with costs.


text:
    Brooklyn City Court — General Term.
    Filed June 25, 1894.
    Walter S. Davies, Resp’t, v Frederick W. Kalbfleisch, App’lt.

      Edward V. B. Kissam, for app’lt; W. Bapelyea Davies, for resp’t.
   Per Curiam.

The exceptions at pages 12 and 18 were taken in general language. Counsel, if he claimed that there could be no recovery for use and occupation under the pleadings, should have specifically stated the ground of his objection. Niebuhr v. Schreyer, 135 N. Y. 614; 48 St. Rep. 73. Judgment and order denying new trial affirmed, with costs.


text:
    Francis J. Moissen, Resp’t, v. Henry H. Browne, as Receiver, etc., App’lt.

      Geo. B. Boyd, for app’lt; Vraneis J. Moissen, for resp’t.
   Per Curiam.

The only points before us are the exceptions to the conclusion of law, and the exceptions to the refusal to find conclusions of law, as requested by defendant. Valentine v. Austin, 124 N. Y. 400, 404; 36 St. Rep. 400. There is no finding of fact that there was any fraudulent intent on the part of the respondent, and there is no finding as to the amount due to him at the time of the transfer by the judgment debtor. We think that the conclusion of law at folio 86 must be sustained on the ground that it-follows from the findings of fact. If there was no fraudulent intent on the part of plaintiff, the assignment was good for services already rendered, and probably for such services as were definitely agreed to at the time of the delivery of the assignment. Swift v. Hart, 35 Hun, 128; Paper Co. v. O'Dougherty, 36 id. 79. Judgment affirmed, with costs.


author: Gray, J.

text:
    The Allison Brothers’ Company, Resp’t, v. Oscar W. Allison, App’lt.

      (Court of Appeals,

      Filed November 27, 1894

    1. Contracts—Construction—Patents.
    In order to include future patents for new inventions in the line of man: .ufacturing a certain article or product, the language of the contract must he very plain and evidence unmistakably that such an agreement was in the mind of the inventor, as well as in that of the purchaser from him of patent interests.
    2. Same.
    This is especially true in a case, where the inventions sought to be ap propriated are devices wholly independent of those covered by the vendee’s patents and capable of being put into practice without using its machines, or infringing upon its patent rights.
    3. Same—Reformation.
    To justify the reformation of a contract on the ground of mistake, the mutuality of the mistake must be made out, and' the fact that a different agreement was intended by both must be established, by clear and convincing evidence.
    Appeal from judgment of the general term of the supreme court in the fifth judicial department, entered upon an order, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at an equity term.

      Theodore Bacon, for app’lt; John Van Voorhis, for resp’t.

       Reversing 53 St. Rep. 492.

   Gray, J.

The action was brought for the purpose of enjoining the defendants from manufacturing cigarette machines, or granting licenses to use them, etc., and for the further purpose of reforming certain agreements, to which the defendant was a party and which related to interests in patents for cigarette machines. The first purpose seems to have been abandoned and the action, being tried upon the latter ground, resulted in a judgment for the plaintiff, reforming the agreements in question, in the respects prayed for. The defendant had been a machinist and became interested in the designing of machines for making cigarettes. Such a machine already existed, but he discovered a new mechanical process and obtained a patent, in 1880, “ for a new and useful improvement in cigarette machines.” Subsequently, he assigned to his brother a half interest in the patent. In 1882, Clarke formed a partnership with them and at first put ¡§5,000 into the business, under an agreement, which licensed the firm to use the patented machine for a term of years. Yery shortly afterwards, however, that agreement was canceled and a new agreement was made, by which the two Allisons assigned, each, to Clarke an undivided sixth interest in two letters patent “ for an improvement in cigarettes and cigarette machines and any improvements, renewals, or re-issues of said cigarettes, cigarette machines, or letters patent * * * to the full end of the term for which said letters were granted and for the term of any extension, any improvements thereof, or any re-issues thereon * * *" meaning hereby to vest in said Clarke one undivided third of said patents, extensions, or improvements thereof.” In 1883, Allen was admitted into the firm and put into the business the sum of $25,000, purchasing a fourth interest thereof. An agreement drawn by him, was executed by the parties, by which there was assigned to him by the Allisons and Clarke “an undivided fourth part of all patents, machines, machinery, stock, etc., now used and owned by parties of the first part in the manufacture of tobacco, cigarettes, etc., under the firm name of Allison' Brothers$and Co., as well as new patents, machines, machinery or appliances which may be obtained or used in connection with said business,” the intention of the agreement being declared to be that each of the four parties should have “ an undivided one-fourth interest in all patents and improvements on the same, which may hereafter.be made, machines, stocks and business of the firm of Allison Brothers and Co., making each an equal partner in the same.”

The co-partnership thus existing was thereafter changed into a corporation; which is the present plaintiff. A bill of sale was first executed, transferring to the new corporation the firm property and its patent interests, but, later, it was deemed expedient, more formally, to vest in the corporation the title to the patent interests and an agreement was executed by the Allisons and Clarke, by which they, holding the record title, assigned to it their respective interests in the described letters patent, which they had “ heretofore enjoyed as members of the firm and which had been used by said firm. This transfer to include any improvements, renewals, or re-issues of said patented improvements, or letters patent, etc.” The defendant, within a year, became dissatisfied and severed his relations with the company. After he left he discovered new mechanical devices for making cigarettes and there were issued to him five letters patent, each issue being “for improvements in cigarette machines.” The object of the present action was to secure to the plaintiff the right to these new patents, by virtue of the assignments, which have been referred to. The judgment recovered was based upon findings, in each case, to the effect that “ the agreement which the writing was intended to express” was that Clarke, or Allen, took an equal interest with the others in the patents already issued and in all the new inventions and improvements, which the defendant should make in machinery for the manufacture of cigarettes, and if the writing was insufficient to express fhat'agreement, the omission was “ by the mutual mistake of all the parties; ” and, also, with respect to the corporation that was formed, the finding was of similar import, that the firm and each member thereof agreed to transfer to it every interest in improvements in cigarette machines, including the invention of new devices, etc., and all patents therefor and if the bill of sale was insufficient* the omission was caused by the mutual mistake of the parties. In affirming the judgment below, the general term, evidently, was unwilling to place the right to relief upon a reformation of the instruments in question and it was there held that they were sufficient to vest in the plaintiff the right to any and all after inventions. While it is readily perceived that it may be important to the plaintiff, as conducing to its business success and prosperity, to have the agreements so construed, or reformed, as to cover all new patents for inventions by the defendant of improvements in these machines, the question to this defendant is of paramount importance, for, if such was his agreement, he had assigned away for all time the product of his inventive talent, in the line of its particular development, or, to refer to Mr. Justice Bradley’s observation, in Aspinwall Mfg. Co. v. Gill, 32 Fed. Rep. 700, had given a “mortgage on his brain to bind all its future production.”

As it seems to be usually the case with inventors, the defendant’s necessities obliged him to have resort to some one possessed of means, in order to develop the machine on which he was then at work. The moneys went into that work, but not into his pocket. His severance of relations with the corporation, according to his acount, was caused by the intolerable continuance of the material wants and the stress of his daily needs, pecuniary provision for which, he says, he was unable to procure to be advanced to him. Whether his account is true, or whether, according to evidence for the plaintiff, his departure was rather due to some unworthy motive to injure it for his own benefit, is, of course, not a controlling consideration. The question is, what had the parties agreed to? With respect to these four instruments, the two first, mentioned as made with Clarke and after-wards with Allen, only need engage our attention, for under the two subsequent ones, to which the plaintiff corporation was a party, it could get nothing more, in our opinion, than what the firm of Allison Brothers and Co. owned. In the bill of sale, the firm transferred to the plaintiff, besides the property and plant on hand, “ all patents or interests in patents owned by any or either of said firm for improvements in cigarettes and cigarette machines, or machinery for manufacturing same.” The subsequent and more formal assignment to plaintiff transferred to it “ the rights and privileges enjoyed by said firm ” in certain improvements covered by two described issues of letters patent. The concluding statement, “this transfer to include any improvements, renewals and re-issues of said patented improvements, or letters patent Eos. etc., etc., etc.,” adds nothing to broaden the transfer. We must consider, then, what Clarke and, after him, Allen obtained from the defendant by the instruments, to which they were parties. Th'e assignment to Clarke was of a third interest in specific letters patent “and any improvements, renewals or re-issues of said cigarette machines, or letters patent,” and the meaning of the instruments was declared to be, “to vest in said Clarke an undivided third of said patents, extensions or improvements thereof.!’ The assignment to Allen transferred to him from the firm, composed of the Allisons and Clarke, a fourth interest in the patents, etc., used by them in the manufacture of cigarattes, under the firm name of Allison Brothers & Co., “as well as new patents, machinery or appliances which may be obtained or used in connection with said business; ” and the explicit declaration of “the intention of the agreement ” was that each party should have a fourth interest “ in all the patents and improvements on the same, which may hereafter be made, * * * of the firm of Allison Brothers & Co., etc., etc.”

The important word in these instruments is “ improvement ” and it is to be noticed that it is used in connection with and as dependent upon the existing patents and machines. The “ improvements,” an interest in which was transferred to Clarke, are described as “of said cigaratte machines, or letters patent,” or of the said patents. If by that term new and independent inventions were not included, then it is too doubtful" to predicate a recovery upon what was comprehended in the assignment to Allen, for, apparently, he only obtained what the firm had a right to in the way of improvements; that is, “new patents * * * which may be obtained in connection with said business.” His assignment related only to what the firm was using in the way of a patented machine.

The term “ improvement,” used as it is here with respect to certain patents, or machines, cannot be deemed to be equivalent to some entirely new process, which is independent of the former invention. The same article produced by the former machine may be, also, produced by means o'f a new invention, or device, which would be quite independent, in the process of manufacture, of the existing machine. It seems pretty plain that an agreement to include future improvements, or additions to an invention should, in the purchaser’s interest, be made to include any such process, if the purchaser is to preclude the vendor from afterwards setting up a rival invention. See Morris Patents-Conveyancing, 38-34. The patents, in question in this litigation, precisely, are distinct and rival inventions, for it was proved, and it was not disputed, that they were not infringements and the finding of the court was that defendant’s inventions cannot be used on plaintiff’s machines, without substantial alterations. . ISTor is there any finding that these, new patents were improvements to, or upon, the machines owned by the plaintiff. The proof was that they not only do not make use of the plaintiff’s devices,- but that they cannot be used upon the existing machines. It must be borne in mind that the defendant was not the first inventor of a cigarette machine. He invented improvements in such machines. An improvement might involve the addition of something which did not involve invention and yet might' modify or affect the result of operation. The word is to be governed, necessarily, in 'its application, by the sense which the context lends to it. In these instruments, as the word is used, it conveys the idea of an improvement of or about the machine patented and in use by the firm, by way of addition or change and not of improvements in cigarette machines, which would be independent of the existing one. An improvement of a machine, or of a patent, which these instruments mention, cannot, in our opinion, be deemed, to cover all future inventions of devices for the making of cigarettes by machinery. Without citing authorities, we think that they and the.text books sustain the view that, in order to include, generally, future patents for new inventions, in the line of manufacturing a certain article, or product, the language of the contract must be very plain and evidence unmistakably that such an agreement was in the mind of the inventor, as well as in that of the purchaser from him of patent interests. That seems especially true in a case like this where, as before observed, the inventions sought to be appropriated are devices wholly independent of those covered by plaintiff’s patents, and capable of being put into practice without using its machines, or infringing upon its patent rights. There is no difficulty, if the purchaser of an interest in patent rights wishes to include any improvements by new processes and devices, which the inventor may thereafter discover and patent, in expressing such an agreement in simple and unambiguous language, which, will exclude doubt as to so far-reaching a contract.

Holding this view, with respect to the construction of these instruments, should the decree below be sustained, which reforms them by inserting a clause appropriate to comprehend the defendant’s future discoveries and patents ? Is the proof of that degree, that the court would be authorized to alter the contracts of the parties, on the ground stated of “a mutual mistake” in expressing themselves therein? Certainly, the power of a court of equity extends to giving relief, not only in cases where the agreement, through fraud or accident, varies from what the parties intended, but, also, where, through mistake, their intention has not been expressed. Henkle v. Assurance Society, 1 Ves. Sen. Ch. 317. But, as Lord Chancellor Hardwicks observed in that case, “there ought to be the strongest proof possible ” that “ the contract in writing has been framed contrary to the intent and real agree-» ment.” Chancellor Kent said that “ the most demonstrative proof, especially against the answer denying the mistake,” was necessary. Lyman v. United Ins. Co., 2 Johns. Ch. 630. Judge Redfield, in a note to § 157 of Story’s Equity Jurisprudence (11th ed.), says: “The proof must be such as will strike all minds alike as being unquestionable and free from reasonable doubt.” A court of equity, in correcting an agreement by parties upon the ground of mistake, proceeds upon the theory that it does not express their real sense and it is most evident that the mutuality of the mistake must be made out, and the fact of a different agreement having been intended by both established, by evidence which is clear and convincing. As Spencer, Ch. J., said, upon the review of Lyman v. United Ins. Co., supra, in the court of errors, “It is not enough, in cases of this kind, to show the sense and intention of one of the parties to the contract. It must be shown incontrovertibly that the sense and intention of the other party concurred in it. In other words, it must be proved that they both understood the contract as it is alleged it ought to have been and as in fact it was but for the mistake.” So, in Nevius v. Dunlap, 33 N. Y. at p. 680, Brown, J., relying upon the authority of Lyman v. United Ins. Co., supra, and of Mr. Justice Story (Eq. Jur. 157), observed: “To entitle a party to the decree of a court of equity reforming a written instrument, he must show, first, a plain mistake, clearly made out by satisfactory proofs. Whenever the evidence is loose, equivocal or contradictory, or is in its texture open to doubt, or opposing presumptions, the relief will not be granted.” In that case the question related to the reformation of a bond, and this court, considering the evidence not up to the requisite standard, reversed the judgment which the general term had affirmed. All of these observations, with respect to the right to relief under this head of equity jurisprudence, are in accord with the legal theory that courts of justice can only carry into effect such contracts as the parties have made and cannot make contracts for them, which would be the result, if they varied the executed instrument upon proof which was equivocal or contradictory. In the present case, the proofs upon which the special term adjudged the relief were not only contradictory, but most equivocal. It is impossible to say that they are convincing, with respect to the intention of the parties to make different agreements'than those which were formally executed by them. The general term justices, themselves, seemed to doubt the sufficiency of the proof to warrant a reformation, for their opinion, in affirmance, proceeds upon the theory of a construction of the instruments favorable to the plaintiff’s claim.

Let us consider these prrofs. In the first place, we must bear in mind that cigarette machines were previously in existence as inventions and that what the defendant discovered and worked out into practical shape was an improvement in such .machinery, or a new mechanical process, capable of making cigarettes to the greater advantage of the manufacturer, in economy, expedition or otherwise. Such a machine he had made and patented, at the time he and his brother secured Clarke as a partner and the contribution frpm him of some capital. Capital was requisite to dev elope the particular machine, when he came into the firm, and ns ownership of a patent for it was the inducement for the advance of capital to obtain an interest in the partnership, which, at first, was only a licensee of the owners of the patent, and, subsequently, for the acquisition of an interest in the patent rights. When, afterwards, Clarke advanced more money, another patent had been taken out and it was with reference to the two patents that he acquired by the assignment a third interest. The only evidence we have to show any intention of the parties to that instrument to agree differently than it expresses, is in the testimony of Clarke as to preliminary conversations. He does testify that prior to the execution of the second instrument, in a conversation, the Allisons said he should have the benefit of any improvements^ that should be made, and there was, possibly, enough said in conversation, according to his testimony, to warrant him in supposing that there would be assigned to him an interest-in future and new inventions of the defendant. When-Allen testifies, witli respect to what occurred before his agreement was executed, lie is more precise with respect to what the defendant represented and his testimony, standing alone, would make out an intention that he should have, through his payment of moneys, an interest broad enough to include future and new inventions. He drew the agreement, and he was permitted to testify that he “ intended to make it broad enough to cover the future inventions or machines Allison might make. ” But the instrument was already drawn, at the time of the conversation in which defendant represented that he was going to make another machine and that he, Allen, “was buying an interest in the whole thing,” and not in consequence of it. But, however, with respect to their several agreements, the testimony of Clarke and of Allen may be regarded, the defendant denies that he made the statements or representations attributed to him by each of them, and he explicitly denies that he, or, so far as he knew, his brother, ever agreed that, if more capital was put in, they would put in any invention pertaining to tobacco machines which they might invent.- So we have, as against instruments apparently full and carefully drawn, and each one of which was executed with many formalities, merely, in each case, the statement of Clarke, or of Allen, which is explicitly contradicted by the defendant. The instruments are complete to transfer the interest in specific patent's and in any improvements of, or upon, the patented machine. Shall the court, in the face of an agreement complete upon its face, upon this contradictory evidence, make a different agreement for the parties ? Is the proof positive enough and unequivocal ? Can it be said that the findings are supported by the proofs ? We think not, and we think that the facts, in the deliberations and negotiations of the parties prior to the making of each agreement, in the evidence of unusual care in its making, in the formalities of its execution, in the absence of any corroboration of Clarke, or of Allen, in circumstances, or otherwise, all, together, tend to emphatically rebut the inference of any omission in the agreement of the nature claimed, and that they, taken in connection with the explicit denial and contradiction of the defendant, did not warrant the’ finding of a mutual mistake of the parties, whereby the agreements executed did not express their real agreements.

The views we have expressed lead to the conclusion that the judgment below should be reversed and that a new trial should be ordered, with costs to abide the event.

All concur.

Judgment reversed.


text:
    Thomson-Houston Electric Company of New York, App’lt, v. The Durant Land Improvement Company, Resp't.

      (Court of Appeals,

      Filed November 27, 1894.)

    1. Appeal—Findings.
    The refusal of a referee to pass upon a vital and material question in the case, is manifest error.
    2. Damages—Landlord and tenant—Covenant to repair.
    A tenant, in a suit for rent, can recoup damages for a breach of the lessor’s covenant to repair.
    3. Same.
    The taking and retaining of the demised premises by the lessee is not inconsistent with a remedy on the covenants to repair made by the landlord, and is not a waiver of his right to claim damages for a breach.
    4. Same.
    In such case, the tenant is not bound to make permanent and important repairs, which the landlord was to make, but may seek his remedy by action to recover the damages or by counterclaim.
    5. Same—Rule.
    The rule, which measures the damages by the difference in genera rental value, in most cases, best satisfies the demand of justice.
    6. Same.
    But, where the parties have, by their contract, fixed the rule of damages, it will control.
    7. Same.
    The lessee, where he establishes a breach of the covenant to repair, is. entitled to at least nominal damages.
    8. Appeal—Nominal damages.
    Where substantial damages have been suffered, the denial of nominal: damages is error requiring a reversal.
    Appeal from judgment of the general term of the court of common pleas for the city and county of New York, entered upon an order, which affirmed a judgment in favor of defendant, entered upon the report of a referee.
    The action was brought by an electric light company as lessee, to enjoin the defendant, the landlord, from ejecting it from the-premises, Nos. 421-431, on Twenty-fourth and Twenty-fifth streets, in the city of New York, and for damages sustained from a breach of covenants on the part of the lessor. The parties-represent the original parties to the lease, and to the agreement for a lease, which agreement was dated November 15, 1887. The leased premises consist of a seven-storied brick building, 200 feet long, seventy feet high and ninety feet in width on the-two streets mentioned, and which, prior to the making of the agreement for the lease, had been used for a sugar refinery. By the agreement of November 15, 1887, the defendant agreed to-tease the premises to the plaintiff for the term of thirty-three years from May. 1, 1888, together with certain machinery therein, at and for the annual rent of $14,500, the lessee to pay in addition certain taxes, and also the cost of insurance beyond a specified rate. It set forth the terms of the contemplated lease, and. provided that the lease should be executed and delivered December 15, 1887, which time was extended to January 4, 1888, on which day the lease was executed. It was contemplated that the lessee might desire to enter upon the premises before the commencement of the term to excavate for the foundation of a large engine to be placed thereon for its business of an electric light and power company, and to place the same, and for other purposes, and. the agreement provided that for such portion of the premises as the lessee might desire to occupy prior to May 1, 1888, the lessee should pay a rental at the rate of twelve and one-half cents per annum, for every square foot of floor space so occupied. In pursuance of this agreement the plaintiff entered upon - the cellar and first floor of the premises in December, 1887, and before the commencement of the term, May 1,1888, it had expended a large sum in preparing the foundations for its engine and machinery, and placing therein a large engine for its business, and in making other necessary changes. The lease contained numerous covenants, both on the part of the lessor and lessee. The lessor, among other things, covenanted to deliver the demised property to the lessee orf the first day of the term, “ in a sound and- substantial condition, and in a state of good repair.” • It commenced making repairs, but they were not completed on May 1, 1888, and the lessoT remained in possession of some of the upper floors of the building up to August 1, 1888, and then left the premises, and since that date the lessor has not interfered with the possession of the lessee. In March, 1888, the lessor applied to the building department of the city of New York, under the statute, for permission to make repairs on the building. This was followed by an inspection of the building by an inspector, a report by him that the building was unsafe, a survey and a report by the surveyors, dated April 19, 1888, that the building was unsafe and dangerous, specifying the repairs required, including the taking down of the east wall or the building of buttresses to sustain it, the trial of an issue before a jury in the court of common pleas of the city and county of New York, wherein it was found that the building was unsafe and dangerous in its existing condition, and required for its safety that buttresses should be built to support the east wall, as specified in the report of the surveyor, and the jury recommended that the front wall on Twenty-fourth street be taken down above the first story, excepting the two end piers, as described in the report. The verdict of the jury was rendered May 7, 1888, and a precept in accordance therewith was issued June 13, 1888, requiring the superintendent of buildings to make the repairs specified in the verdict, but for some reason, for which no explanation is given, the precept has never been executed. The various proceedings recited were taken pursuant to title 5 of chap. 11 of the Consolidation Act of 1882, as amended by chap. 566 of the Laws of 1887. . In addition to the general covenant above referred- to, the lessor covenanted “ that all alterations, improvements, rebuilding and additions of and to the said property, which shall be required during the term hereby granted, by any present or future law, ordinance or authority whatsoever, shall be made or procured to be made by the parties of the first part (lessor) at their own proper cost and expense, provided, however, such alterations, improvements, rebuilding and additions as are hereinabove covenanted to be made by the parties of the first part, shall be such as are of a permanent nature and become a part of the freehold, and shall not be such a^ are rendered necessary by reason of the uses to which the said property is or shall be put.”
    The lessor reserved a right of re-entry to make such repairs as it was required to make, and following this reservation is the clause: “ It being mutually understood and agreed, however, that the parties of the first part, their heirs, executors, administrators or assigns, shall be responsible for the making of said repairs and rebuilding, and for the making of the same as soon as practicable, only upon said property as it exists at the time of this letting, the rent hereinbefore reserved to be abated and suspended in the cases hereinbefore specified, in similar manner and proportions as it is hereinafter agreed such rent shall abate and be suspended 'in case of damage by fire.” The provisions defining the obligations of the respective parlies in case of damage by fire, declare that if damage is so caused as will cause a liability to repair or rebuild to accrue to the lessor, he will at his own cost and -expense, as soon as practicable, put the buildings in a state of repair equal to that in which they were before said damage was done. The provision for such suspension or apportionment ■ of the rent in case of damage by fire is as follows: “And during the time the party of the second part, its successors or assigns, are deprived of the use -and possession of the premises hereby demised by reason of such damage and rebuilding by the parties of the first part, the rent heretofore reserved,or such part thereof as shall be justly proportionate to the portion or portions of- the said demised premises, of the use of which the said party of the second part, its successors or assigns, shall be deprived by reason of such damage or rebuilding or by reason of the possession or control of the said premises by the said parties of the first part, shall be suspended or abated.” The lessor has never repaired the building to conform to the requirements in the building department proceedings, nor has he done anything to remedy the defects therein defined. Evidence was given on the trial as to the safety of the'building at and since these proceedings were taken, and it was-shown by the great preponderance of evidence that at least the four upper floors were unsafe, and unfit to be occupied for any business purpose by reason of the insecurity of the walls of the building. They have never been occupied in fact by the lessee for any purpose.
    The lease also contained a covenant by the lessor to put in and "build two staircases on the 24th street side of the premises, and one staircase on the 25th street .side, and to alter the location of the Otis elevator, and the size of the freight elevator “ at any time after the date of the lease and upon thirty days’ notice in writing ” from the lessee. Notice to perform this covenant was given by the lessee to the lessor 30 days prior to May 1, 1888. The lessor took out the existing stairway on the 25th street side of the building in June, 1888, leaving a staircase on the 24th street side as the only means of access to the building, and proceeded no further. This covenant has never been in any respect performed. Subsequent to the entry of the lessee under the lease, disputes arose between the parties, based upon the violation by the defendant of its covenants. The plaintiff neglected and refused to pay the rent, and the defendant commenced summary proceedings in a district court of the city of New York, under the statute to dispossess the plaintiff for non-payment. The plaintiff sought to set up in these proceedings his claim for damages for breach of the covenants by the lessor as a defense, and succeeded in that court, but the judgment was reversed on appeal on the ground that such damages could not be considered in those proceedings. Several proceedings of this character were instituted by the defendant, and more were threatened. Thereupon this action was brought by the plaintiff.
    The complaint sets forth a breach by the defendant of the covenants herein specially referred to and of others, and demanded damages therefor, and that an injunction issue restraining further proceedings to eject the plaintiff. The defendant in his answer denied the breaches alleged and set up a claim for rent. The referee, to whom the action was referred, found that the plaintiff was entitled to certain allowances for damages on certain covenants of the lessor, which should be deducted from the rent, taxes, etc. He refused to allow any damages on the covenant to make the alterations required “ by any present or future law, ordinance or authority whatsoever; ” and he also refused to allow any damages for any breach of the covenant to build staircases, etc. He directed judgment in favor of the defendant for the sum of $70,967.05. The judgment entered upon the.report was affirmed by the general term, and the plaintiff thereupon appealed to this court.

      William B. Putney and Henry B. Twombly, for app’lt; Hselc Bowen and Charles J. Hardy, for resp’t.

       Reversing 53 St. Rep. 467.

   Andrews, Ch. J.

The principle question of fact litigated on the trial related to the condition of the walls of the building on the demised premises. A large mass of evidence was taken of architects, builders and other persons, and it tended to establish, by the great preponderance of proof, that the walls were unsafe, and rendered the upper stories of the building unfit for occupation for any business purpose. The building was condemned as wholly unsafe by the building department of the city of Hew York prior to May 1, 1888. The defendant contested the decision, and issues were tried before a jury, under the provisions of chap. 410 of the consolidation act of 1882, as amended by chap. 566 of the Laws of 1887, and the jury, on the 7th day of May, 1888, found that the building was unsafe in its then condition, and that buttresses should be built to support the east wall, and that the front wall on Twenty-fourth street should be taken down above the first story, with the exception of the two end piers. The referee, however, refused to make any finding or adjudication upon the question of the soundness or unsoundness, safety or unsafety of the walls of the building, for the reason assigned in his report, viz.: “ That an adjudication on this ques-' tian was immaterial, because of the fact that the plaintiff has used and occupied the building for its business, and has had an undisturbed right to the beneficial use of the remaining part of the building (i. e., the part not actually used) under the lease, up to the date of the report.” It is apparent, from the report of the referee, that if he had deemed a finding on the subject material he would have found that the walls were unsafe, and that the occupation of the upper stories of the building for purposes of business would have been dangerous. This was a vital and material question in the case, and the refusal of the referee to pass upon it was manifest error. The reason assigned by the referee for refusing to make a finding in regard thereto was based upon a misconception of the action, and of the character and scope of the covenants in. the lease. The covenant on the part of the lessee to pay the rent and charges specified in the lease, and on the part of the lessor to deliver the demised premises to the lessee at the commencement of the lease in “ a sound and substantial condition, and in a state of good repair,” and also to make, as soon as practicable, all changes and alterations “ required at any time during the term by any present or future law, ordinance or authority whatsoever,” were distinct and independent covenants. The plaintiff, having entered upon the demised premises under the lease, and continued in possession, was bound to pay the rent reserved, and he could not defend on the ground that the covenant on the part of the lessor to put the premises in repair, or to make changes or alterations required by municipal or other legal authority, had not been performed. On the other hand, the lessor, when sued on his covenants, could not allege in bar of the action, that the lessee had remained in possession of the premises. But either one, in an action brought against him by the other, could counterclaim any demand arising under the lease against the plaintiff in the action. The tenant, in a suit for the rent, could recoup any damages for a breach of the covenants to repair, and the landlord, if sued by the tenant for a breach of the covenants on his part, could counterclaim the rent reserved by the lease The matter set up in the answer in either of the supposed cases would arise out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim. Code, § 501; Cook v. Soule, 56 N. Y. 420. The taking and retaining of the demised premises by the lessee is not inconsistent with a remedy on the covenants to repair made by the landlord, and would not be a waiver of the tenant’s right to claim damages for a breach. The lessee is not bound to give up his lease to avail himself of the landlord’s covenants, and a rule that remaining in possession would constitute a bar to his action would defeat one of the very purposes of the rule that covenants of this character are separate and independent. Such a case is not to be confounded with one where an eviction is relied upon as a defense to an action for rent. When an eviction is pleaded in such an action an abandonment or surrender of the possession must be shown, because the general rule is that there can be no eviction, actual or constructive, without abandonment of possession. Boreel v. Lawton, 90 N. Y. 293. If, therefore, the condition of the walls deprived the plaintiff of the beneficial use of the upper stories of the building, and if suffering them to remain in an unsafe condition was a violation by the lessor of any covenant in the lease,, he was entitled not only to a finding that the walls were unsafe, but also to any legal damage shown to have resulted to him from such violation. Upon the first branch of this inquiry there can be no reasonable doubt. The plaintiff has not occupied up to this time the upper stories of the building. His actual occupation has been restricted to the first and second stories. The evidence tends to show that the use of the upper stories by himself or by sub-tenants would be dangerous. It would be an act of temerity for the plaintiff to use them for business purposes, and to sub-let them to tenants in the existing condition would be inexcusable, if not criminal negligence. The use of the lower floors is rendered comparatively safe, as the engines and machinery are placed upon independent foundations, specially constructed, and supports were put in by the plaintiff which tended to strengthen the portions of tire building occupied by it. The other branch of the inquiry requires a reference to the lease to ascertain whether the defendant entered into any contract which bound him to make the necessary changes and reparations to make the walls secure There is as little doubt on this branch of the inquiry as upon the other. Leaving out of view the general covenant to surrender to the plaintiff at the commencement of the term, “ in a sound and substantial condition and in a state of good repair,” the special covenant of the lessor to make all changes which might be required at any time during the term “by any present or future law, ordinance or authority whatsoever,” plainly covers the case.

It is not denied that the proceedings of the building department of the city of Hew York, which terminated in the verdict of the jury, were regularly conducted and bound the defendant. The improvements and alterations specified in the verdict and required to be made, were of a permanent nature and when made would become a part of the freehold, and to make them required a large expenditure. This was the situation contemplated by the covenant. It became the duty of the defendant, as between him and the plaintiff, to make the improvements and alterations so directed to be made, and this obligation he wholly failed to discharge. „ If he had performed his covenant the whole building would have been rendered safe and fit for occupation. The breach of this covenant was clearly established, and the plaintiff was entitled to recover the damages shown to have resulted therefrom. The referee awardéd neither substantial nor nominal damages. It is claimed on behalf of the defendant that no proof was given based upon the true measure of damages, and that in the absence of such proof, the refusal of the referee to find a breach of the covenant, or that the building was unsafe, was not reversible error, as no legal harm resulted from such refusal. The plaintiff,. as the evidence tends to show, by reason of the failure of the defendant to render the building safe, was deprived of. the beneficial use of the upper stories. What the true rule of damages in such case would be, independently of the contract, has been the subject of much comment by counsel. The plaintiff sought to recover the rental value' of the space which he could not use by reason of the unsafe condition of the building, at a price per square foot, and gave evidence tending to show that the several floors could have been rented upon that basis for a sum which in the aggregate was considerably more than the entire rent reserved in the lease. In support of this basis for damages, reference is made to the fact that, in the agreement for a lease, it was provided that, for the portions of the building which the plaintiff might occupy before the commencement of the term, he should pay rent at a certain rate per square foot for the space occupied.

The referee also adopted this method for ascertaining the allowance made by him to the plaintiff for the time from May lr 1888, during which the defendant was engaged in making repairs. The defendant’s counsel insists that the true rule of damages was either the cost of repairing the walls, or the difference between the rental value of the premises as they were and the rental value as they would have been if the covenant had been" complied with.

We are inclined to the opinion that when a building erected for business purposes is rented as a whole and without any specific reference to a use by way of sub-letting, or where that is not the primary purpose contemplated by the parties, the damages for the breach of a covenant to repair is the difference in the rental value of the premises as they are and as they were to be, regarding the premises as a whole, and that they are not to be measured by supposed loss, by reason of the tenant being unable to parcel out separate portions and let them to under-tenants. Such a rule of damages would lead to great uncertainty and subject the lessor to liability based on covenants with third persons, of which ordinarily he could know nothing. Loss of profits upon the very contract sued upon, if definite and certain, may be-recovered, Masterton v. Mayor, etc., 7 Hill, 61, or where a contract is made in view of an already existing contract with a third person, and the contract sued upon is made with special reference to such contract and to enable the party to carry it out, then the loss sustained, or' the profits which might have been realized on such contract with a third person, may be a proper-subject for consideration. Messmore v. N. Y. Shot & Lead Co., 40 N. Y. 422. But in the ordinary case of a lease of a building to be used for any purpose at the discretion of the lessee, and there has been a breach by the lessor of a covenant to repair, the rule which measures the damages by the difference in general rental value, is usually compensatory, and, in most cases, best satisfies the demand of justice. If in all cases it does not afford full compensation, it eliminates an element of speculation and uncertainty which, if permitted to be considered, would often lead to great injustice. The cases of Myers v. Burns, 35 N. Y. 269, and Hexter v. Knox, 63 id. 561, were cases of leases for hotel purposes, and for a breach by the landlord of a covenant to repair the tenant was allowed to recover the value of the use of certain rooms in the hotel for hotel purposes during the time they were rendered untenantable because of the failure to perform the covenant. These cases fall within a well-defined class, which permits a recovery on a breach of contract of damages which it may be found were contemplated by the parties when the contract was made, as a consequence of the breach of the covenant. The claim that the cost of repairing the walls is the measure of damages cannot be- sustained. If the tenant had elected to repair the walls it is possible that he could have charged the necessary expense to the landlord, or recouped the amount in an action brought for the rent. But a tenant is not bound to make permanent and important repairs, which the landlord was to make, but may seek his remedy by action to recover the damages or by counterclaim. Cook v. Soule, 56 N. Y. 420; Hexter v. Knox, supra. But we are of opinion that in this case the parties have, by their contract, fixed the rule of damages for a breach by the defendant of his covenant to make alterations required at any time during the term by municipal or other public authority. Modus et conventio vincunt legem.

The lessor reserved a right of re-entry to make “ such repairs as shall be necessary to be made by them,” and covenanted to make them as soon as practicable, and the lease provided that meanwhile the “rent hereinbefore reserved to be abated and 'suspended, etc., in similar manner and proportion as it is hereinafter agreed such rent shall abate and be suspended in case of damage by fire.” The provision in respect to damage by fire declares that the “ rent hereinbefore reserved, or-such part thereof as shall be justly proportionate to the portion or portions of the said demised premises, of the use of which the said party of the second part (lessee), etc.,shall be deprived by reason of such damage, etc., shall be suspended and abated,” etc. The parties have declared, in substance, that in the case now represented therent shall be apportioned as between the part occupied and the part' not tenantable. The measure of damage would, under the agreement, be determined by assuming, in the first place, that the rent reserved is the annual rental value of the whole premises, and by then ascertaining the proportionate value of the portion of the building of which the plaintiff has been deprived of the beneficial use by the failure of the defendant to perform its covenant. The plaintiff failed to give evidence of loss founded upon the true measure of damages. But, in any event, having established the breach of the covenant, he was entitled to nominal damages, and even these were not awarded. The referee erred in the rule of law adopted by him, in a very material respect, which rendered the question of nominal or substantial damages unimportant. The right to nominal damages, where the right thereto has been improperly denied, may not require a reversal of a judgment when it appears that on a new trial only" nominal damages 'could be recovered. If the refusal to awartj them did not influence the question of costs, and the judgment would not constitute an estoppel in respect to other interests, the party whose strict right was denied might not be deemed aggrieved, and the judgment would not, perhaps, be reversed merely to vindicate a barren right. But it would be a perversion of justice to deny a new trial in a case like the present, where the court can see that substantial damages have been suffered, but the party mistook the basis on which they should be ascertained. In such case denial of the right to nominal damages, to which in any event the party was entitled, is error for which the judgment should be reversed. See Brantingham v. Fay, 1 Johns. Cas. 256; Leeds v. Metropolitan Gas Light Co., 90 N. Y. 26.

Other questions were argued at the bar, but, in view of the conclusion that there should be a new trial, they need not be considered.

The judgment should be reversed and a new trial ordered.

All concur. Judgment reversed.