author: Bradley, J.

text:
    Jennie E. Reilly and Jennie Reilly, App’lts, v. Charles Hart, Resp’t.

      (Court of Appeals, Second Division,

      Filed February 9, 1892.)

    Service—Publication—Terminates at death oe plaintive.
    When service by publication in a foreclosure action was about half completed the plaintiff died, ihe publication was continued, the action revived b/ the plaintiff’s executors, and judgment recovered therein. Held, that the publication being incomplete at the time of the plaintiff’s death, the summons had not been served upon the non-resident defendants and the court acquired no jurisdiction, and defendant was justified in refusing to accept the title derived from the referee’s sale under such judgment.
    Appeal from judgment entered upon the direction of the general term of the supreme court in the second judicial department in a controversy submitted for determination.

      John R. Kuhn,for app’lts ; Jesse Johnson, for resp’t.

       Affirming 29 St. Rep., 556.

   Bradley, J.

The controversy arose upon the refusal of the' defendant to complete the purchase of certain land in the city of Brooklyn, which land was the subject of a contract between the parties, whereby the plaintiffs agreed to sell and convey it by full covenant warranty deed to the defendant and the latter to purchase it at the price of $8,360. The refusal was upon the asserted ground that the plaintiffs were unable to convey a perfect title to the premises. The title of the plaintiffs was derived from the purchaser of the property on a sale made pursuant to a judgment of foreclosure of a mortgage. And the objection was founded on the charge that such foreclosure sale was ineffectual to bar the equity of redemption of one Lynch, who had the title subject to the mortgage. Lynch and his wife resided in the state of Louisiana. The action to foreclose the mortgage was commenced by one Goggshall in November, 1874, by the service of the summons personally upon two defendants other than Lynch and his wife. And in December following an order for service of the summons by publication upon them was obtained, and the summons was published accordingly, but before that service was completed the plaintiff in the action died. The publication of the summons, nevertheless, proceeded to the termination of' the six weeks, the time directed by the order. And ■ afterwards, pursuant to the order of the court in which that action was brought, it was continued in the name of the executrix of the will of the deceased plaintiff. The defendants Lynch did not appear. And the decree was thereafter entered and the sale pursuant to it had. The question is whether the summons was effectually served upon defendants Lynch. The action having been commenced by the personal service of the summons .on the two other defendants, was properly continued in the name of the executrix as plaintiff. Code, § 121; Livermore v. Bainbridge, 49 N. Y., 125.

As the requisite time to effect service by publication had not expired at the time of the death of the original plaintiff, the summons had not then been served upon the defendants Lynch, and the court had acquired no jurisdiction of them, although it had of the action by the personal service of the other defendants. But the effect of the death of the plaintiff was to produce a suspension of further proceedings until bis successor was placed in that relation to the action. What had been accomplished in it while there was a plaintiff remained effectual, and when the ex- ■ ecutrix became such, progress in the action could properly be made from the place in the proceedings where the suspension had left them. Moore v. Hamilton, 44 N. Y., 666.

In that view, the order for service of the summons by publication may have remained available, but it is not seen how the four weeks’ publication of the summons before the death, and the ' two weeks following, could be treated as'an effectual service upon those non resident defendants. During the latter period there was no plaintiff,' and in practical effect no action to support any proceedings within that time. The prior publication of the summons was then an unaccomplished attempt to servé it. And to constitute a service in that manner it was necessary to publish once in each of six successive weeks in the two designated newspapers.

There was then no service of the summons on those defendants while the action in which the order was made had any party plaintiff, and for that reason it was in a suspended condition and could not support any proceeding then taken for any purpose other than to continue it in the name of the successor as such. Before the death of the original plaintiff the court had acquired no jurisdiction of those defendants. It could not obtain any during the suspension following his death. And consequently it had no jurisdiction of them at the time the executrix became plaintiff, and it does not appear that their persons were thereafter in any manner brought in that relation to the court. It is suggested that the situation is no different than it would be in case of an assignment by a plaintiff during the pendency of an action; but it may be seen that in such case there would continuously be a plaintiff and for that reason not necessarily any legal suspension of proceedings. As the statutory provisions relating to the continuance of the action at the time in question were in the old Code, no reference to those of the present Code is called for. But the latter in the respect under consideration do not modify the rule applicable to the present case.

These views lead to the conclusion that the defendant was justified in his refusal to accept under the contract the title which the plaintiffs were able to convey, and that the judgment should be affirmed.

Judgment affirmed, with costs.

All concur.


source: Caselaw Access Project

author: McCarthy, J.

license: Public Domain

text:
    Melanie Effray, Resp’t, v. Marie E. Masson, Adm’rx, App’lt.

      (City Court of New York, General Term,

      Filed December 17, 1891.)

    Decedent’s estates—Costs.
    Plaintiff presented her claim in pursuance to a notice to creditors to present claims, and the same was rejected by the administratrix as an unjust and unlawful claim. This action was thereupon brought and plaintiff recovered and entered judgment for the claim and costs, which were taxed without objection. On motion to amend the judgment by striking out the costs, Held, that after such unqualified refusal plaintiff was not bound to go further before commencing her action to entitle her to costs; that the case came clearly within § 1836 of the Code, and that no certificate of the trial judge was required.
    Appeal from order denying motion to amend judgment by striking out tlie costs inserted therein.

      F. Fuerslel, for resp’t; M. F. Finnegan, for app’lt.
   McCarthy, J.

This is an appeal from an order made by the Hon. Justice Fitzsimons, denying a motion made on behalf of the defendants to amend the judgment entered herein by striking out and disallowing the costs of the plaintiff inserted after a trial and recovery had in favor of plaintiff.

The plaintiff commenced an action against defendant in her representative capacity as administratrix, etc., of Mary Ann Thuillier, deceased, to recover a sum of money claimed to be due to plaintiff from the estate of said decedent. This action was at issue on complaint and answer, and was duly tried before Hon. Justice Van Wyck and a jury, at a regular trial term, and judgment rendered in favor of plaintiff with an extra allowance of five per cent.

The action was commenced after the due presentation to the administratrix in pursuance of a notice published by her requiring creditors to present claims within a specified time, and which claim of plaintiff had been duly presented and absolutely rejected by the administratrix.

After the trial the plaintiff duly served a bill of costs with" due notice of taxation, and costs were duly taxed' by the clerk, in pursuance of such notice, without objection from the defendant.

Judgment was thereupon entered against defendant in her representative capacity as administratrix, on May 11th, the notice of taxation having been previously served on May 8, and on said May 11th notice of the entry of judgment was duly served on appellant’s (defendant’s) attorney.

On May 15th defendant made a motion to set aside the verdict and judgment and for a new trial of this action on the judge’s minutes, which motion was duly heard and argued before the Hon. Justice Van Wyck, before whom the trial was had, and denied, with ten dollars costs to plaintiff, and thereafter the motion to amend said judgment by striking out the costs was made.

The including of costs in the judgment in this case without application to the court was premature and irregular and subject to be stricken out on motion unless the plaintiff can satisfy the court that it comes within the requirements of § 1836 and authorities hereafter cited. When such appears, the court, in order to do substantial justice, will disregard the irregularhy and grant the relief asked for. The defendant obtained on May 19, 1891, an order to-show cause why an order should not be made requiring the clerk of this court to amend the judgment entered herein by strikingou,t all of the costs other than the actual disbursements taxed and entered herein. Upon the hearing of this motion the following papers besides the pleadings were presented :

[Title of case.]

On the annexed affidavit of Michael F. Finnegan, verified the 19th day of May, 1891, and upon all the proceedings heretofore had herein,

Let the plaintiff or her attorney show cause before me, or otieof the justices of this court, at the chambers thereof in the Old City Hall, in the city of Hew York, on the 21st day of May, 1891, at ten o’clock in the forenoon, why an order should not be made, requiring the clerk of this court to amend the judgment entered herein by striking out all costs other than the actual disbursements, taxed and entered herein.

Service of a copy of this order and affidavit on the plaintiff's-attorney on or before the 19th day of May, 1891, will be deemed, sufficient service.

Dated H. Y., May 19, 1891. J. M. Fitzsimons.
[Title of case.] .

City and County op Hew York, ss.:

Michael F. Finnegan, being duly sworn, says that he is the attorney for the defendant above named.

That this action was brought to recover the sum of $540 and interest for board and lodging, claimed to be due and owing from defendant's intestate at the time of her demise.

That on or about the 19th day of June, 1890, the plaintiff presented to defendant, as such administratrix, her claim for said board and lódging, which was promptly rejected.

That the plaintiff never offered to refer said claim but immediately brought suit against defendant.

That on the trial of this action judgment was recovered against defendant for the sum of $540 and interest, and thereafter and on. the 11th day of May, 1891, the plaintiff’s attorney improperly entered judgment, with costs, other than disbursements, without first, obtaining permission from the court, as required by the Code of Civil Procedure!

Wherefore deponent prays that an order may be made requiring the plaintiff or her attorney to show cause why an order should not be made requiring the clerk of this court to strike out. the costs heretofore taxed in this action.

That no previous application has been made for this order.

M. F. Finnegan.
Sworn to before me this 19th )
day of May, 1891. )
W. Tazwell Fox,
Notary Public, N. Y. Co..

[Title of case.]

City and County of Hew York, ss. :

Edmund Huerstel, the plaintiff’s attorney herein, being duly .sworn, says: That a trial of this action was duly had on the 5th. ■day of May, 1891, before Hon. Justice Van Wyck and a jury, ■and a verdict rendered by direction of the court in favor of the plaintiff for the sum $639.80, and that an extra allowance of five per cent was granted by the justice to the plaintiff.

That thereafter, on the 8th day of May, 1891, deponent caused to be served on the defendant’s attorney a bill of costs, with a notice of taxation for the 11th day of May, 1891, and that in pursuance of such notice the costs were duly taxed by the clerk at ;$93.91, and that defendant’s counsel did not oppose or object to such taxation, and that on the same day judgment in this action was duly entered, and a copy of the same, with notice of its entry on the same day, served on the defendant’s attorney.

That this action is brought to recover a claim against the estate of said deceased, which had been duly presented to the administratrix in pursuance of a notice of creditors to present claims published by said administratrix, and upon presentation of which the same was rejected by a notice in writing signed by said administatrix, a copy of which said claim is annexed to the complaint in this action, and a copy of the rejection thereof is also hereto annexed.

That the administratrix made no offer in reference to this claim as provided by statute, and the deponent was thereupon retained to commence this action for the plaintiff.

That the judgment entered herein, including costs and extra allowance, is against the defendant in her representative capacity as such administratrix, and not against her individually.

That on the trial of this action the justice granted an extra allowance of five per cent to the plaintiff, to which defendant’s counsel interposed no objection, and at the same time the justice, on the rendering of said verdict, directed in the minutes as follows, viz.: twenty days stay of execution after notice of entry of judgment, and' thirty days to make a case.

That subsequently, on the 15th day of May inst., the defendant’s attorney served a notice of motion to set aside the judgment and verdict, and for a new trial on the minutes, which motion was duly heard before Hon. Justice Van Wyck at a trial term on May 19th inst., and an order was made and duly entered thereon denying the same, with ten dollars costs to the plaintiff; and on the same day the order to show cause in this present motion was served on deponent after an argument had before Hon. Justice Van Wyck, and the eight days after notice of entiy of judgment herein, and eleven days after service of notice of taxation of costs in this action had been served, as above mentioned.

Edmund Huerstel.
Sworn to before me this 21st) day of May, 1891. j
William J. Gilroy,
Commissioner of Deeds, N. Y. Co.
“ Eotice of rejection of claim.
June 23,1890.
“ The within cl^im is hereby rejected for the reason that the-same is an unjust and unlawful claim.
“Marie E. Masson,
“Administratrix.”

This then brought the whole question before the court as well' as the question of irregularity. It is the same as it' the motion was now made by plaintiff to allow the costs. The statements-contained in the affidavit of plaintiff’s attorney were not denied nor-answered. This written rejection was absolute and comes clearly within § 1836, Code Civil Procedure.

Earl, J., in Carter v. Beckwith,, 104 N. Y., 239; 5 St. Rep., 617, says: “After such an unqualified refusal the plaintiff was-not bound to go further before commencing his action in order to-entitle him to costs.” It is not necessary to obtain or present a statement of the facts certified by the judge before whom the-trial took place in this court. Section 3343, Code of Civil Procedure, declares what are superior city courts. This court is not. one of them. The administratrix having been exempted from, the payment of costs personally and is not therefore injured, cannot be heard to complain of the • absence of the certificate of the-judge who tried the case. Meltzer v. Doll, 91 N. Y., 374.

The order should be affirmed, without costs.

Ehrlich, Ch. J., and McG-own, J., concur.


text:
    Ephraim C. Gates et al., App’lts, v. Arthur H. Dundon, Impl’d, Resp’t.

      (City Court of New York,

      General Term,

      Filed December 17, 1891.)

    Bills and notes—Fraud—Duress.
    Defendant, on the recommendation of the plaintiffs as to his responsibility, let a contract for building to one S., who afterwards abandoned the work at a time when he was over paid. Shortly thereafter one of the plaintiffs claimed that money was due ■ them for materials used in the building, and threatened to file a lien, stating that if they did so, others would also, and defendant would be embarrassed in procuring loans to complete. Defendant agreed to pay what was due therefor, the accounts were-produced, but not shown to defendant, and he gave a note for the amount stated to be due, the plaintiff stating that such amount was subject to revision. In an action on the note the answer set up the foregoing facts, and claimed that defendant gave the note relying on the false statements, and was misled and induced to do so thereby. The amount stated in fact included materials used in other buildings. Held, that the answer included the defense of duress, and that such defense was properly submitted to the jury.
    Appeal from judgment in favor of defendant, entered on verdict.

      Foster <& Stephens, for- app’lts; W. B. Fllison, for resp’t.
   McCarthy, J.

In the early spring of 1890 the defendant, Arthur H. Dundon (for twenty-one years a professor in the Eormal College in this city), solicited bids from various builders for-the purpose of constructing for himself a house on property belonging to him at the corner of Crestón avenue and Kirk place, Fordham, New York city. Among those who responded was the defendant, Luman A. Soule. Prof. Dundon was unacquainted with Mr. Soule and thought the plaintiffs, being large dealers in builders’ supplies, would most likely be acquainted with the character and responsibility of builders in that neighborhood.

Prof. Dundon and Mr. Barnard were personal friends, being members of the same club and neighbors. Prof. Dundon met Mr. Barnard at the latter’s office, and first told him that he was about to build a house; that the Teachers’ Co-operative Building Association of the City of New York had agreed to loan him moneys wherewith to build; that the defendant Soule had bid upon the building, and that he, Dundon, was anxious to give the contract to some man who would subsequently give him no trouble.

Mr. Barnard assured Prof. Dundon that the defendant Soule was one of their customers; that he paid his bills promptly; that he was building two other houses in Washington avenue and Pine street; that he was an excellent man; that he was responsible ; that he owned the house he lived in, worth between four and five thousand dollars; that he had built seven other houses, and that they had no trouble with him; that were it not for a rule of the plaintiff’s firm preventing him from so doing he would have no hesitation in going on Mr. Soule’s bond, and that Prof. Dundon was unquestionably perfectly safe in giving the contract to Mr. Soule.

The contract was thereupon given, and Mr. Soule continued with the work until about the 15th day of August, 1890, when he abandoned the same. When he stopped work he had been overpaid by Prof. Dundon in about five hundred dollars,

On or about the 6th or 7th day of September, 1890, the plaintiff, Mr. Barnard, called to see Prof.- Dundon, and informed him that Mr. Soule was indebted to the plaintiffs, and that unless Prof. Dundon paid Mr. Soule’s bill the plaintiffs would file a lien upon his (Dunaon’s) house; that when they put their lien upon the house a half dozen other liens would follow; that the Teachers’ Co-operative Building Association, learning of these liens, would refuse to make the remainder of the loan; that he would have nothing but a shell of a house on his hands, to be the talk of the neighborhood for months and months; that he must give the plaintiffs their money or they would file the lien, and there would be no end to the worry and vexations into which he would be plunged.

Mr. Barnard knew at the time when he made the above threats that Prof. Dundon had overpaid the defendant Soule and that the Teachers’ Co-operative Building Association were advancing moneys from time to time as the building progressed; that the filing of a lien at that time would, as he said it would, completely stop the completion of the building and expose Prof. Dundon to very serious loss.

Then followed several meetings between Mr. Barnard, Mr. Soule and Prof. Dundon, at each of which Mr. Barnard, notwithstanding there was nothing then owing to Mr. Soule, threatened to file liens for the amount of the latter’s indebtedness to the plaintiffs, and impressed upon Prof. Dundon the loss and injury which would be occasioned him thereby, unless he should agree to pay the amount of Mr. Soule’s indebtedness to the plaintiffs. Prof. Dundon, influenced by these threats and in order to avoid the loss which Mr. Barnard had impressed upon him would occur if he did not do so, promised to pay the plaintiffs the amount that should be found due from the defendant Soule to the plaintiff for material actually used in the construction of the building.

After Mr. Barnard had succeeded in inducing Prof. Dundon to make this promise, he then directed Mr. Soule to produce the statements of account, defendant’s exhibit 1 and 2. When the bills were produced by Mr. Soule, Mr. Barnard expressly stated: “ These are the bills sent to Mr. Soule for lumber that went into your house.”

Mr. Barnard kept possession of the statements of account, but stated that the whole amount due was $783, from which he deducted $400, which had already been paid to the plaintiffs on orders made by the defendant Soule, and that the balance due for lumber actually used in the construction of Prof: Dundon’s house was $383.59. When Mr. Barnard announced this balance to be due, Prof. Dundon said that he did not know anything about the accounts, and that he depended entirely upon Mr. Barnard and Mr. Soule; to which Mr. Barnard replied, that if the statement was not right it would be subject to revision. A note was then drawn up for the amount of the balance alleged to be due and signed by Prof. Dundon and Mr. Soule. Prof. Dundon testified positively that he would not have signed the note except by reason of the threats made by Mr. Barnard, and he did so in.per- • feet reliance upon the truth of the statement that $383.59 represented the balance due from Soule to the plaintiffs for material actually used in the construction of the building.

There was absolutely no consideration for the note other than as hereinbefore stated.

A few days after signing the note Prof. Dundon looked over the statements of account (Defendant’s Exhibit 1 and 2) that had been left with him, and then discovered that Mr. Barnard had deceived him in relation thereto.

It will be remembered here that these statements of account.j had not been shown to Prof. Dundon before he had been induced | to sign the note. These exhibits present a perfectly clear case of | fraud on the part of the plaintiffs represented by Mr. Barnard* / No evidence other than the statements themselves is necessary to* show the deception practiced upon Prof. Dundon in this case. They are in the handwriting of the plaintiffs’ bookkeeper. They show upon their faces that a very large portion of the material therein referred to was delivered upon Soule’s order to other buildings that he was then constructing at Pine street and Washington avenue, and which was not used in the construction of Prof. Dundon’s house and from which he derived no benefit whatever. These statements show a well-defined scheme on the part of Mr. Barnai’d and Mr. Soule to deceive Prof. Dundon into paying the entire indebtedness of Soule to the plaintiffs, irrespective of whether or not he had received any benefit therefrom.

The total amount shown upon these exhibits is $783.59, in which is included the plaintiffs’ whole account against the defendant Soule, yet the marginal notes in red ink, in the handwriting of the plaintiffs’ bookkeeper, show that a large portion of the material went elsewhere than to Prof. Dundon’s house. Mr. Barnard, however, simply deducted from the total of these two statements the $400 previously paid the plaintiffs by Prof. Dundon on orders of Mr. Soule, and calmly alleged the balance, $383.59, to be the amount due by Mr. Soule to the plaintiffs for material actually used in Prof. Dundon’s house. The figuring in pencil at the foot of the columns in the statements is in the handwriting of Mr. Barnard, and shows clearly the part he played in the scheme. Mr. Barnard has no hesitation in attempting to testify that the red-ink marginal memoranda were not in the handwriting of the plaintiffs, and he sought to show that these statements had been tampered with since they left his possession, but his counsel (more careful in relation of facts).admitted that they had been placed thereon by the plaintiffs’ bookkeeper. These statements were brought to Prof. Dundon by Mr. Barnard himself.

The first item in these statements is not an unfair sample of the manner in which the accounts were kept and of the glaringly apparent attempt to deceive. That item is dated March 3, 1890, for one thousand feet of flooring. ' At this time the contract had not been given to Mr. Soule, and not the first effort been made to commence the excavations for the building.

In addition to the amounts charged, as shown by the statements, for material which Professor Dundon did not receive, large quantities were delivered to the house, but subsequently removed.

Very shortly after Professor Dundon discovered the alleged fraud that had. been practiced upon him, he notified Mr. Barnard that he would not pay the note.

The defendant Soule did not defend, and the plaintiffs now have judgment against him for the amount of the note sued on.

Upon the foregoing facts, Professor Dundon resisted payment of the note on the following grounds :

1. That there was no consideration? therefor.

2. That the note had been obtained from him upon false and fraudulent representations, made by or on behalf of the plaintiffs.

3. That he was induced to sign the note by reason of the threats made by plaintiffs, and in order to avoid the loss and damage which were alleged would occur in case of his refusal; and,

4. That the amount was subject to revision, and the utmost that the plaintiffs could recover in any event was the amount of the material actually used in his house.

The case was finally, under instructions of the court, submitted to the jury, who found a verdict for the defendant The plaintiffs moved for a new trial upon the ground that the verdict is against the law, against the evidence, and exceptions taken at the trial, which motion was denied. They now appeal from the judgment entered upon the verdict and the order denying a new trial. The plaintiffs claim that the court had no authority whatever to submit the question of duress as a defense to the jury, because no such defense was set up in the answer. The answer is as follows:

[Title of case.]

The above named defendant, Arthur H. Dundon, for his answer to the plaintiffs1 complaint herein, shows to the court as follows:

First. For a first defense. He admits the making of the promissory note referred to in the complaint herein, but alleges that the same was made without any consideration whatever.

¡Second. And for a second and further defense.

1. He alleges that prior to the 11th day of September, 1890, this defendant, desiring to have constructed for him a dwelling-house on certain of his property in the city of Hew York, sought bids and estimates from various contractors for the construction thereof, among whom was the above named defendant, Luman A. Soule, whose bid or estimate, this defendant accepted at the suggestion of the plaintiffs, and upon the recommendation of the responsibility of the said Luman A. Soule.

2. He alleges that thereupon this defendant and said Luman A. Soule entered into an agreement or contract for the construction of said dwelling house, under and in pursuance of which this defendant agreed to and did pay to said Luman A. Soule, or to his order, large sums of money at various times, to enable him to purchase the material and perform the work that he agreed to purchase and perform under said agreement or contract, including the material to be and which was purchased by the defendant, Luman A. Soule, from the plaintiffs.

3. He alleges that shortly thereafter, but still prior to the said 11th day of September, 1890, this defendant was informed by the plaintiffs that the said Luman A. Soule had not applied the moneys so paid to him by this defendant for that purpose to the liquidation of the indebtedness of the said Luman A. Soule to the plaintiffs for material supplied him for the construction of said dwelling house, and that the said Luman A. Soule was indebted to them therefor in a large amount, and that they would file a lien on said property therefor unless the same was paid.

4. He alleges that this defendant then stated to the plaintiffs, and the fact was, that he had then overpaid the said defendant, Luman A. Soule, and was not indebted to him in any amount, but that he was willing to pay to them the price or value of the material supplied by them to the said Luman A. Soule, and actually used in the construction of this defendant’s said dwelling house, if any there were then yet remaining unpaid for.

5. He alleges that thereupon and prior to the said 11th day of September, 1890, and prior to the making of the said promissory note in the complaint referred to, the plaintiffs, falsely and fraudulently and with intent to deceive this defendant, stated to this defendant that there then was material which had been supplied by them to the said Luman A. Soule, and actually used in the construction of this defendant’s said dwelling house, of the price or value of $383.59, for which said sum the said Luman A. Soule was then still indebted to the plaintiffs.

6. He alleges that this defendant, relying upon said false and fraudulent representations of the plaintiffs, and deceived thereby, signed said promissory note, which was and is for the amount of said alleged indebtedness of the said Luman A. Soule to the plaintiffs.

7. He alleges that said statements of the plaintiffs as to the amount due by the said Luman A. Soule to them for material supplied to him by them, and actually used in the construction of this defendant’s said dwelling house, were false and fraudulent, and were made with the intention to deceive, and they did deceive this defendant, and he was thereby misled and induced to sign said promissory note.

Third. And for a third and further defense.

1. He alleges that prior to the 11th day of September, 1890, this defendant desiring to have constructed for him a dwelling house on certain, of his property in the city of Hew York, sought bids or estimates from various contractors for the construction thereof, among whom was the above-named defendant accepted at the suggestion of the plaintiffs and upon their recommendation of the responsibility of the said Luman A. Soule.

2. He alleges that thereupon this defendant and said Luman A. Soule entered into an agreement or contract for the construction of said dwelling house, under and in pursuance of which this defendant agreed to and did pay to said Luman A. Soule, or to his order, large sums of money at various times, to enable him to purchase the material and perform the work that he had agreed to purchase and perform under said agreement- or contract, including the material to be and which was purchased by the defendant, Luman A. Soule, from the plaintiffs.

3. He alleges that shortly thereafter, but still prior to the said 11th day of September, 1890, this defendant was informed by the plaintiffs that the said Luman A. Soule had not applied the moneys so paid to him by this defendant for that purpose, to the liquidation of the indebtedness of the said Luman A. Soule to the plaintiffs for material supplied him for the construction of said dwelling house, and that the said Luman A Soule was indebted to them therefor in a large amount, and that they would file a lien on said property therefor unless the same was paid.

4. He alleges that this defendant then stated to the plaintiffs, and the fact was, that he had then overpaid the said defendant, Luman A. Soule, and was not indebted to him in any amount, but that he was willing to pay to them the price or value of the material supplied by them to the said Luman A. Soule, and actually used in the construction of this defendant’s said dwelling house, if any there were then yet remaining unpaid for.

5. He alleges that thereupon and prior to the said 11th day of September, 1890, and prior to the making of the said promissory note in the complaint referred to, the plaintiffs stated to this defendant that there was material which had been supplied by them to the said Luman A. Soule, and actually used in the construction of this defendant’s said dwelling house, of the price or value of $383.59, for which said sum the said Luman A. Soule was then still indebted to the plaintiffs.

6. " He alleges that this defendant signed said promissory note, relying upon said representations of the plaintiffs, and deceived thereby, and upon the express understanding and agreement then had between the plaintiffs and this defendant, and said note was made and delivered on and subject to the condition that the said promissory note should not be binding or conclusive between them, but that this defendant might at any time thereafter correct said amount and show that the same did not correctly represent the amount of said alleged indebtedness of the said Luman A. Soule to the plaintiffs for material supplied him by them and actually used in the construction of this defendant’s said house.

7. He alleges that the said amount of the said promissory note grossly exceeds the-amount due by the said Luman A. Soule to the plaintiffs as aforesaid.

Wherefore, this defendant asks judgment dismissing the plaintiffs’ complaint, with the costs and expense of this suit.

William B. Ellison, Attorney for Defendant,
■No. 229 Broadway, A. 7. City.

The fact that the answer states the fraudulent representations of the plaintiff by which the defendant was induced to sign the note in question, and by which the defendant seeks now to avoid the payment, does not necessarily stamp the same as in tort, especially when the words in the answer charging fraud may be regarded as matter of inducement. It is quite clear, upon an examination of the answer, that the allegations are sufficient to allow of the defense.

It alleges the fraud and deception that was practiced on the defendant by Barnard and Soule and as an inducement in procuring the promissory note from the defendant, although the defendant constantly protested. Secor v. Clark, 117 N. Y, 350; 27 St. Rep., 169, was an appeal from a judgment of the general term of the superior court of the city of New York entered upon an order which reversed a judgment in favor of the defendant entered upon a decision of the court on trial at special term.

The court of appeals, in reversing the order of the general term and affirming the judgment of the special term, at p. 353 after stating the allegations of the complaint and the evidence given, says. uThere is no allegation in the complaint and there was no proof upon the trial of any fraud or deception practiced by Clark in procuring the assignment from the plaintiffs. At the time they executed it they knew all about the facts. Such things do not constitute duress within any authority to he found."

This was good law, and we must follow it. In this case the answer alleges all the requirements and apprised the plaintiff that one of his defenses is the avoidance of the payment of the note because he did not sign it voluntarily. That on the contrary it was compulsory and induced by the fraudulent statements aleged and the threats made. It was not necessary to use the word “ duress ” or any other word, but the facts must be properly set forth. We think the plaintiff was fairly warned by the answer and such cause of action is fairly embraced within the facts alleged therein. The principle being that where there exists coercion, threats or compulsion and where injustice is done by means of such improper and dishonest influences as to subdue the will of a party that it loses the power of resistance, the law will interpose its power in protecting the party thus imposed upon either by refusing its aid to the wrong-doer or by defeating and undoing the wrong and restoring the injured party what he had been deprived of. Plaintiff also excepts to so much of the charge of the court as permits the j ury to find a verdict in favor of the defendant on the ground of duress. This exception is not well taken. The evidence of Mr. Dundon and the presentation of the exhibits, as well as the rest of the testimony clearly, makes this a question of fact for the j ury. It sufficiently defines the position of the parties and shows that the giving of the note was not the free and voluntary act of the defendant, but that he had no choice in order to prevent the plaintiffs from doing the various -acts threatened and thus cause loss and damage to his property and fortune. Bari, J. in Dunham v. Griswold, 100 N. Y., 226-227, says “When there is no arrest, no imprisonment, ho actual force, and it is claimed that a promise was obtained by duress per minas, then whether or not the promise was obtained by duress must usually be a question of fact and the question cannot be determined as one of law. It is not sufficient in such a case to satisfy the trial court that threats were uttered; but it must also be shown that they constrained the will of the promisor and induced the promise.”

This ruling was clearly met during the. trial of this case. Church, O. J., in Baldwin et al. v. Liverpool & G. W. S. S. Co., 74 N.Y., 128, says, “ It is not disputed but that if the defendant was not legally entitled to exact the £200 for the transportation of the boxes, the plaintiffs are entitled to recover it back as having been paid under duress of goods.”

Rapallo, J., in Scholey v. Mumford et al., 60 N.Y, 501, says, “To constitute a voluntary payment the party paying must have had the freedom of exercising his will. When he acts under any species of compulsion the payment is not voluntary. If a party has in his possession goods, or other property, belonging to another, and refuses to deliver such property to that other unless the latter pays him a sum of money which he has no right to receive, and in order to obtain possession of his property he pays that sum, the money so paid is a payment made by compulsion and may be recovered bach. Per Bayley, J., Shaw v. Woodcock, 7 B. & C., 73.

“This has been frequently decided. Where a pawn broker refused to deliver plate pawned, except upon payment of excessive interest, and the owner paid it to obtain his property, he was allowed to recover back the excess. Astley v. Reynolds, 2 Stra., 915. An action will lie to recover back money paid- to release goods wrongfully detained on a claim of lien, Ashmole v. Wainwright, 2 Ad. & El. (N. R.), 837; Harmony v. Bingham, 12 N. Y., 109, 116, or money wrongfully exacted by a corporation as condition permitting a transfer of stock. Bates v. N. Y. Ins. Co., 3 Johns. Cas., 238. The cases to this effect are numerous. In all these cases the payment is regarded as compulsory and not voluntary. I think the case at bar falls within the principle of these decisions.”

See McPherson v. Cox, 86 N. Y., 479; Harmony v. Bingham, 12 id., 116, 117; Stenton v. Jerome, 54 id., 485; Barry v. Equitable Life Assurance Society, 59 id., 592.

The motion to require the defendant to elect between the second and third defences in the answer was properly denied ; they were not inconsistent. See Kelly v. Bernheimer, 47 How. Pr., 62.

We think no error has been committed. The other exceptions were not well taken, either because they were made too late or were too general or the testimony was material. The question at fol. 138 of the case, Q. Would you have signed it had it not been for them, was properly allowed. It was not only necessary to prove the fraud and fraudulent representations, but also to show that they were the inducements, influence or compulsion under which the defendant signed the promissory note.

The judgment should be affirmed, with costs.

Yan Wyck, J., concurs.


text:
    The United States Net & Twine Co., Resp’t, v. Robert Alexander, App’lt.

      (City Court of New York,

      General Term,

      Filed December 17, 1891.)

    1. Attachment.
    The affidavits to obtain a warrant of attachment on the ground that defendant was disposing of his property and was about to make an assignment to defraud creditors, stated that in a conversation with defendant the latter stated that he was insolvent, and if plaintiff pushed him to a suit he would make an assignment, preferring other creditors to whom he was under greater obligations, and the result would be that plaintiff would not get a cent. On motion to set aside the attachment on the papers on which it was granted. Held, that there was sufficient evidence of fraudulent intent to sustain it.
    2. Same—Affidavit.
    Where the action is brought on distinct claims, it is not necessary that the affidavit should allege that as to each item there is no counterclaim.
    Appeal from order denying motion to vacate an attachment C. R. Allison, for resp't; F. Solingér, for app’lt.
   McCarthy, J.

This is an appeal from an order denying a motion to vacate an attachment upon the papers upon was granted. The warrant recites that the grounds thereof are “that the defendant has disposed of his property, and is about to make an assignment, with intent to defraud his creditors.”

A prior attachment, granted in this action, on the ground that the defendant kept himself concealed within this state, with intent to avoid service of the summons, was vacated upon the merits.

The complaint is on two causes of action, one for goods sold and ■delivered and the other for breach of an agreement under which goods were consigned to the defendant.

The answer forms one of the original papers on-which the warrant of attachment was granted. The affidavit of William H. Wallace sets forth, among other things:

“ I reminded defendant of his agreement to us; he admitted he was greatly at fault in not doing so; I then asked defendant to pay his bill; he declined to do so, and stated that it was entirely ■out of the question, as he did not have that amount or any amount, and finally added, 11 have not a dollar in the world.
“ I then requested him to secure plaintiff for the amount of its -claim, and he requested to be allowed to return the balance of the unsold consigned goods. At that time I did not know as well as now the amount of goods he had disposed of, and refused, because it was agreed by plaintiff and defendant if he wished to return said goods he should have rendered a statement and made .such request before the season in which such goods are most salable is over, and that now it was too late. Since that time I have learned from Mr. Onion that the defendant has sold a larger quantity of the consigned goods than he represented he had done •on that evening. Again continuing the conversation had with the defendant at that time, I requested defendant to state exactly what his circumstances were, in order to see if I could not assist him in adjusting matters, whereupon he stated that his stock and fixtures were worth between $2,700 and $3,000, including the •consigned goods of plaintiff, and that the amount of his indebtedness to his various creditors was over $1,500 or thereabouts. I then demanded of defendant what he intended to do, and he answered that he was insolvent and could pay no one, and that he was ruined, and that by reason of the attachment in force at that time plaintiff had got an upper hand of him and stated that he must assign, whereupon I added we proposed to keep the upper hand until he paid or secured our claim.
“ Defendant thereupon departed saying, ‘ If I must go to-the wall I will make such an assignment by preferring other creditors to whom I am under greater obligations to if you continue to press your attachment, and the result will be that you will not get a cent,' whereupon I added ‘ all right.’ Defendant then responded, ‘If you will give me a show I think I could pay you, but if you do not I must throw up everything;’ that this conversation took place in the presence of Mr. Allison, plaintiff’s attorney. I am ■convinced that defendant is in an insolvent and failing condition. That the sources of my information as to the facts not sworn to in this affidavit positively are from Mr. Clarence Onion and Charles It. Allison, whose affidavits are annexed.”

The affidavit of Mr. Clarence Onion, among other things, sets forth “and asked if he could not adjust it by having plaintiff wait, that he had no money whatever and others were pressing him as well as plaintiff, and that the goods consigned him by plaintiff were all there, with a very small exception, which had been sold by him. That plaintiff’s action would ruin him, and it was his. duty to protect himself and others by means of making an assignment if he could not get the favorable arrangement he demanded from plaintiff. I asked him how he meant to protect others; lie-answered, 1 Simply by preferring them in an assignment.’ I asked him if he thought that was square. He answered: 11 don’t care; that’s what I propose to do if the company pushes me to a suit, and then the company will get nothing but the consigned goods.’ I told him I had nothing to say about the arrangement he desired, but to see Mr. Wallace, the treasurer of the company, who was out at that time.”

We have given this case very careful examination and consideration on the various points suggested by appellant’s counsel, and do not find any defect in the warrant of attachment; it correctly states the amount of plaintiff’s demand.

There is no rule requiring that where the action is brought on distinct claims the affidavit should allege that as to each item there-is no counterclaim. The defendant, however, cites Murray v. Hankin, 30 Hun, 39, in support of same. This was a mere dictum of the judge writing the opinion, who, among other things, suggested that perhaps such ought to be the case.

We find no authority sustaining this position, and cannot, agree with him in such suggestion.

Danforth, J., in Ruppert v. Haug, 87 N. Y., 143, 144, after stating other requirements needed, citing § 636 of the Code of Civil Procedure, says: “ He must show by affidavit that he is entitled to recover a sum stated therein over and above all counter-, claims known to him. It is enough if the. affidavit shows this to-the satisfaction of the judge who receives the application for the-, warrant.” ' '

As to the sufficiency of the evidence, the court must determine-that from all the papers submitted on application and not from any particular one.

We think that while this case is not as strong as it might be, and, therefore, may be termed a close one, there is sufficient, evidence of fraudulent intent to sustain the attachment. ,

Mr. Wallace swears that the defendant said to him (Mr. Wallace’s affidavit): “ I will make such an assignment by preferring other creditors, to whom I am under greater obligations to, -if you press your attachment, and the result will be that you will not get a- cent,” and that in Mr. Onion’s affidavit “I asked him if he thought that was square.’’ He (defendant) “ answered I don’t care ; that’s what I propose to do if the company pushes me to-a suit, and then the company will get nothing but the consigned goods.” - ■ _

_ Here was a direct threat to make use of the power and right, to assign and prefer as a condition, in order to induce, prevent, and intimidate the plaintiff, and thus force him to refrain from exercising his legal right in collecting what he deemed a lawful debt and in securing and maintaining the same by an attachment The question is not as to his right to assign or prefer-creditors, but the effort by his threats to impose upon the plaintiff a condition, and thus prevent the plaintiff from making use of a legal remedy. See Gasherie v. Apple, 14 Abb., 69; approved in Anthony v. Stype, 19 Hun, 265; Livermore v. Rhodes, 27 How. Pr., 507.

This is not a parallel case with Brown v. Keogh, 39 St. Rep., 225.

As the motion to vacate was founded only on the original papers, the statements contained therein are for the purpose of this appeal to be regarded as true, and if they establish a prima facie case against the defendant, he should be required to satisfactorily answer or explain them before asking that the important remedy for the temporary security of the plaintiff should be set aside.

The order appealed from is affirmed, with costs.

Fitzsimons, J., concurs.


author: Fitzsimons, J.

text:
    David H. Carroll, Resp’t, v. Ann T. O’Shea, App’lt.

      (City Court of New York,

      General Term,

      Filed December 17, 1891.)

    Brokers—Commissions.
    Plaintiff, representing the purchaser, called upon the seller’s husband, ■ who was her agent, and made several offers for the property, one of which was accepted. He showed no employment by the seller or her husband. Held, that under such circumstances he had no claim against her for commissions.
    Appeal from judgment in favor of plaintiff, entered upon verdict directed by the court

      Frederick Hemming, for resp’t; Fellows, Gray & Hartman, for app’lt.
   Fitzsimons, J.

The plaintiff is a real estate broker, and sues herein for commissions for the sale of certain property of defendant. The trial j ustice directed a verdict in plaintiff’s favor for the amount claimed, $540.80.

The testimony of the plaintiff shows that he, representing the purchaser of said property as a broker, called upon defendant’s husband, who acted as her agent in this matter, and made several ■offers for the same. The last offer ($26,000) was accepted. Upon this testimony he bases his claim for a recovery. Nowhere in his testimony does it appear that he was ever employed by the defendant, or her husband, to sell the property as defendant's broker. His testimony shows that he was the purchaser's agent or broker.' In such a case no cause of action exists in favor of the broker against the seller for commissions earned. He must first be employed. Then if he complies with the terms of his employment he is entitled to receive pay for his service.

Besides, as above stated, it appears that the plaintiff represented the buyer, and therefore it is reasonable to assume that, as the buyer’s agent, he procured the property at the lowest obtainable figure; while it was his duty, if he was the seller’s agent, to obtain the highest possible price for the same. It is because of this conflict and clash of interests that the law in cases of this. character provides that the broker cannot represent both parties, except by their consent, and exacts from him the highest degree of faithfulness and fidelity to the interests of the party he represents. This he cannot very well do if he serves two masters.

The judgment and order are reversed, with costs to appellant to-abide event of action. New trial ordered.

Van Wyck and McCarthy, JJ., concur.


text:
    William Downey, Resp’t, v. Henry MacAleenan, Impl’d, App’lt.

      (City Court of New York,

      General Term,

      Filed December 29, 1891.)

    Replevin—Inspection oe chattels.
    The court has no power to make an order compelling a party to submit property or chattels that are the subject of controversy to the inspection, of experts, or of the adverse party.
    Appeal from order granting motion to compel defendant to-permit an inspection of the goods replevined from and reclaimed by him.

      O. 0. Comstoclc, for app’lt; F. Bien, for resp’t.
   McCarthy, J.

This is an appeal from an order granting motion made by plaintiff to direct the defendant herein to permit an inspection of the goods replevined in this action, and which were reclaimed by the defendants herein. The defendant MacAleenan is a-pawn-broker, duly licensed, and this is an action of replevin against him to recover possession of certain property alleged by plaintiff to be in Mr. MacAleenan’s possession. The-summons, affidavit and requisition were issued to the coroner of this county on the j.4th day of October, 1891, and received by Mr. Hawkes, the deputy coroner'in charge, of such actions.

The defendant MacAleenan responded, serving his affidavit, and undertaking for the return of the chattels upon the coroner as well as upon Mr. Bien, the plaintiff’s attorney, on October 26th, 1891. The coroner took possession of the property shortly after October 14th, 1891, when he received the original writ

At the same time, that is to say, on the twenty-sixth, the notice of justification for the ,28th October was served upon the coroner and upon Mr. Bien, the plaintiff’s attorney. On the morning of the 28th October, 1891, the defendant’s sureties on his undertaking for the return of the chattel justified before Justice Tan Wyck; the defendant’s undertaking was thereupon approved by Judge Van Wyck and his property forthwith returned to the defendant MacAleenan, who has ever since had it It therefore appears that the coroner had the .property lourteen days in his possession before he returned it to the defendant MacAleenan.

In the meantime plaintiff had' not seen or inspected the-property, and on or about the 29th October, 1891, he made a. motion for an order to direct the defendant MacAleenan to allow it to be inspected. He made this motion upon an affidavit alleging that on October 28th, the date the coroner returned this property to the defendant MacAleenan, he served a notice upon the coroner stating that he wanted to see it before it was returned to the defendant MacAleenan.

Mr. Hawkes, the deputy coroner, says that he never received any such notice, until after the property was delivered back to the defendant MacAleenan. Then, in answer to Mr. Hawkes, Mr. Bien makes an affidavit, in which he says that he did not give notice to Mr Hawkes personally, but left it on his desk in the county courthouse.

These affidavits, therefore, do not conflict, and it must, therefore, be said that it stands admitted that Mr. Hawkes did not get this notice until after he had given back the property to the defendant MacAleenan.

The motion Mr. Bien made for an inspection was opposed by the defendant MacAleenan upon certain grounds, and came on for argument before Mr. Justice McGown, who granted the motion. Upon his decision, an order was entered on December 7, 1891, directing the defendant MacAleenan to allow an inspection of the goods in question within three days from the service of a copy of the order upon his attorney. And it is from this order that the defendant MacAleenan appeals, and desires now to be heard by this court.

The order from which the appeal is taken is found on the first page o£ the printed papers on appeal. The order to show cause, upon which said order was granted, is found at page 3 of the printed papers. The affidavit and notice upon which the order to show cause was granted are found at pages 4 to 7 inclusive. The affidavit in opposition at pages 8 to 11 inclusive; and the affidavit in reply to this at pages 11 and 12. The original summons, notice, affidavit and undertaking in replevin in this action are found at pages 13 to 18 inclusive. The notice, demand for the return, ana the undertaking for the return, and the affidavit of the defendant MacAleenan made in said action are found at pages 19 to 25 inclusive of the case. The proof of service of this upon Mr. Bien on the the 26th October, 1891, at page 25 of the case. And the notice of appeal from the order of Mr. Justice McGrown is found, at page 26 of the case.

The property is now in the possession of the defendant and is the subject of the present litigation. We have examined the books carefully for precedent to sustain the position claimed by the respondent, and with the exception of Walsh v. Sayres, 52 How., 334, can find none. This case is a superior court, special term, decision and has not the support of authority.

On the contrary the superior court, general term, in Neuman v. Third Ave. R. R. Co., 50 Supr. Court (J. & S.), 415, Ingraham, J., says : “ The case of Walsh v. Sayre, 52 How. Pr., 334, is the first case in which such an application was passed on by the court that I have been able to discover. That was an action against a physician for malpractice and on application of the defendant, the special term of this court ordered the plaintiff, an infant, to submit to an examination. It was admitted by the learned judge in liis opinion in that case that there was no recorded case where such an application has been granted and it appears to me that the reasons on which he bases his conclusions are rather those •that should be addressed to the legislature to enlarge the powers of the courts.

“ The position taken by that case, that the abrogation of the rule that a party interested in the event of an action cannot be permitted to testify removes all restraint and leaves the court to unfettered action except so far as it is curbed by the provisions of the statute, appears to me broader than can be sustained. The •effects of the removal of the restriction is, that rules for the examination of the party thus allowed to testify should be governed by the rules applicable to the examination of other witnesses. It gives the court no greater power over such parties than it had over other witnesses. The provision of the Code is that except •otherwise specifically prescribed, a witness shall not be excluded or excused from being a witness by reason of his or her interest in the event of an action, etc. Code Civ. Pro., § 828.”

The courts have uniformly refused to compel a party to submit property or chattels that were the subject of controversy to the inspection of experts or to the adverse party. Ansen v. Tuska, 19 Abb. Pr., 392, 393; see Supreme Court of United States, Union Pacific Railway v. Botsford, Albany Law Journal, October 24, 1891; also, N. Y. Law Journal, Dec. 28, 1891; Miner v. Gardiner, 4 Hun, 132.

The court had no power to make the order. Roberts v. Ogdensburgh & L. C. R. R. Co., 29 Hun, 154, 156; see, also, 50 Supr. Ct., 416.

In Cooke v. Lalance Grosjean Mfg. Co., 29 Hun., 643, Dykman, J., says: “ We find neither precedent nor authority for this order under the common law, the Revised Statutes and the Code of Civil Procedure.”

The plaintiff had an opportunity to examine and inspect the property in question between October 16 and October 28, 1891, while it was in the care and possession of the coroner, but he did not do so. The first move on plaintiff’s part was the leaving of a notice on October 28, 1891, at the office of the coroner, demanding an inspection of the chattels. It was not served personally on the coroner or his deputy, and the property had been twelve days in their possession. The plaintiff was therefore guilty of loches and must suffer the consequences. He certainly cannot now call upon this court to exercise an unprecedented power to furnish him with an opportunity for such examination in order to repair the consequences of such negligence.

Section 2706, Code of Civil Procedure, is the only section which gives the power of inspection or discovery over personal property, but this only applies to matters within the jurisdiction of the surrogate.

For these reasons the order appealed from should be reversed, •with costs.

Ehrlich, Oh. J., and Fitzsimons, J., concur.


author: Ehrlich, Ch. J.

text:
    The Western National Bank, Resp’t, v. Frederick Wood, Impl’d, App’lt. The Homestead Bank, Resp’t, v. Frederick Wood, Impl’d, App’lt.

      (City Court of New York,

      General Term,

      Filed December 29, 1891.)

    1. Bills and notes.
    Notes delivered to a bank for advances to complete buildings upon consideration being advanced become negotiable property and as such transferable by delivery.
    2. Same—Defense.
    Neither an agreement to renew the note nor an agreement to make further advances will constitute a defense or counterclaim in an action on such note.
    Appeals from judgments on verdicts directed in favor of plaintiffs.
    Smith, Bowman & Glose, for app’lt; G. F. MacLean, for resp’ts.
   Ehrlich, Ch. J.

The two cases are alike, except in one- respect In one, there is a counterclaim and in the other, none. The actions are on notes delivered to the Homestead Bank, for advances made to complete certain buildings. Consideration having-been advanced on the notes, they became negotiable property, and as such transferable by delivery. They were so transferred to the-plaintiff, presumably for value and before maturity, and the plaintiff became entitled to recover on them.

The matters pleaded in defense, and attempted to be proved, whether regarded as an agreement to renew the notes, 1 City Ct., 264, or as an agreement by the bank to loan additional moneys, constituted neither a defense nor counterclaim to the notes in suit, and the verdict ordered in favor of the plaintiffs, was rightly directed, and the judgments entered on them must be affirmed, with costs.

McCarthy, J., concurs.


text:
    Blanche Weaver, Resp’t, v. Marc Klaw and Abraham L. Erlanger, App’lts.

      (City Court of New York,

      General Term,

      Filed December 29, 1891.)

    1. Contract—Services—Satisfaction of employer.
    Where a person is to work for another or to perform services for another ■ so long as such work or services prove satisfactory to the employer, the. question of competency is not material.
    2. Same. •
    In an action by an actress for breach of contract of employment, the judge charged that if the jury found that the contract was that she was to give a satisfactory performance for the purpose of ascertaining whether they should enter into contract for a season, that if the jury find that she was not competent to fill the part assigned her and that defendants informed her of that fact, they would not be liable. Held, error; that the question of competency was not at issue.

      Appeal from judgment in favor of plaintiff, entered on verdict and from order denying motion for a new trial.

      M. L. Erlanger, for app’lts; Howe & Eummell, for resp’t
   McCarthy, J.

This is an appeal from a judgment for $699.04 in favor of plaintiff entered on a verdict, and also from an order denying a motion for a new trial.

The action was brought to recover the sum of $1,500, on an alleged contract claimed to have been made October 12, 1889, whereby the defendants are alleged to have employed plaintiff as an actress in one of their companies for the period of twenty-three weeks at $50 per week to commence October 18, 1889. The answer is a general denial.

On the issues so raised the action was tried before Mr. Justice Van Wyck and a jury of six men. The plaintiff was her sole and only witness in support of her demand. She testified,. in substance, that she was employed on October 12th, for twenty-three weeks, at the rate of $50 per week. That she attended several rehearsals, and on Friday evening, October 18th, 1889, she-gave a, performance, immediately after which she was told her services were no longer wanted. The defendants, on their part, claimed that plaintiff having refused to sign a contract containing a two weeks clause, which reserved the right to either party to terminate the contract on two weeks notice, they declined to employ her; that she thereupon volunteered to give a trial performance. That she was told, if her trial performance was satisfactory, the subject of her engagement would be discussed later. That on October 18th she gave a performance which was unsatisfactory, and she was told that she was unfitted for the part Both defendants testified to that effect, as well as a third person who was present at the conversation, and who was in no manner interested in the result. The jury found for the plaintiff.

The appeal brings up for review the facts of the case, and raises various questions of law on the exceptions taken during the trial.

These exceptions are of five kinds:

(A) The one directed to the refusal of the court to direct a verdict for the defendants.

(B) Those to the admission of improper evidence.

(0) Those to the exclusion of proper evidence.

(D) Those to the charge of the court, and refusal to charge.

(E) The one directed to the refusal of the court to grant the motion for a new trial.

At the end of the trial the judge was requested by the defendants’attorney to charge the jury: “Second. If the jury shall find from the testimony that plaintiff undertook to give a satisfactory performance of the part which she played on the evening of the 18th of October, 1889, defendants could terminate employment at their pleasure without assigning any reason therefor."

“The Court: You mean for the purpose of entering into the contract ?"

“ Defendants’attorney: Yes.”

“ The Court: I so charge.”

The Court: I charge the jury that if they should find that the •contract made by Miss Weaver and the defendants was that she was to give a satisfactory performance for the purpose of ascertaining whether they should enter into a contract for her engagement for a season of twenty-three weeks at fifty dollars per week, that if the jury find she was not competent to fill the part assigned her, and that they informed her of that fact, they would not be "liable.

“ Defendants’ attorney: I except to that part of your charge in which you used the word 1 competent,’ and I ask you to charge in the language of my second request

“ The Court: I charge as modified.

“Defendants’ attorney: I except."

This modification of the second request was error. The •question of incompetency was not at issue.

Where a person is to work for another, or to perform services for another, so long as such work or services proves satisfactory to the employer, the question of competency is not material.

If her or his work is not satisfactory to the employer, and particularly when it is a matter of taste, fancy or judgment, he may at any time discharge him without subjecting himself to further claim. Johnson v. Bindseil, 31 St. Rep., 280.

Where one party agrees to do a thing to the satisfaction of the other, and the excellence of the work is a matter of taste, such for instance as a portrait, bust, suit of clothes, dramatic play, the employer may reject it without assigning any reason for his dissatisfaction. Gray v. Alabama National Bank, 30 St. Rep., 824; Glenny v. Lacy, 16 St. Rep., 798, 800; Peverly v. Poole, 19 Abb. N. C., 271.

The defendant was entitled to have this question properly submitted to the jury.

Without passing upon any of the other questions involved, we think this was sufficient error and for which the judgment should be reversed and new trial granted, with costs to the appellant to -abide the event.

Ehrlich, Oh. J., and Eitzsimons, J., concur.


text:
    Gerald R. Brown and John H. Golding, App’lts, v. Abram Wakeman, Resp’t.

      (City Court of New York,

      General Term,

      Filed December 29, 1891.)

    IiANDLOltD AND TENANT—EVICTION.
    Defendant occupied an apartment in certain flats under lease from plaintiffs. Plaintiffs received a notice from the chief clerk of the department of buildings stating that one of the walls had bulged, and that steps should be taken to prevent its becoming dangerous, and that the superintendent desired to see the owners. They thereupon made application to repair, which was granted, and erected four walls, which took away one or more rooms from defendant and rendered the rest almost uninhabitable -during the progress of the repairs. In an action for rent during said time, Held, that the notice received by plaintiffs was mt the notice required by § 507 of the consolidation act, and that the work done by them was voluntary and constituted an eviction from a substantial portion of the premises and suspended the whole rent until the whole premises were restored to •defendant.

      Appeal from judgment in favor of defendant.
    Action for rent.

      McCall & Arnold, for app’lts; Wakeman & Campbell, for resp’t.
   Fitzsimons, J.

In May, 1889, the plaintiffs as lessors rented, to defendant as lessee an apartment in the Southerland Flats, 709' Madison avenue, in the city, for the period of one year commencing May 1, 1889, the defendant then being in possession thereof under a former letting. It appears that in Ocotober, 1889, the plaintiffs commenced certain alterations and repairs in these premises and completed the same. The time when these repairs were completed the jury evidently believed was in or about May, 1890. They consisted principally in the erection of four brick walls commencing at the foundation and running throughout the building up to the roof, and took away from the suite of apartments occupied by the-defendant one or more rooms and perhaps deprived him of the use of others. The positions of these four brick walls are shown in a diagram in the printed case. It appears that they were built for the purpose of strengthening the front wall of said premises, which had bulged and was probably dangerous. During the progress of this work the defendant was, as before stated, deprived of the use of some part of the demised premises and the part he occupied was rendered almost uninhabitable because of the nature of the work being done.

The rent of the demised premises was $100 per month, and this action is to recover the rent from November 1, 1889, to May 1, 1890, viz : $600. Upon the trial the jury rendered a verdict for defendant from which the plaintiff appeals.

The main contention of the plaintiff upon this appeal is predicated upon the theory, that the defendant is not relieved from the payment of the rent provided for in the lease, because he remained in possession of the demised premises during the continuance of the work just described, and that all such repairs and alterations were made in obedience to an order of the department of buildings.

The plaintiffs, of course, must admit that if their repairs and alterations were commenced and completed of their own volition, that their entry upon and into defendant’s apartments without right for the purpose of carrying out the same was an eviction, and that for the time defendant was so evicted from a substantial portion of the demised premises the rent of the whole suite ceased.

Therefore, the first question presented for our decision is, “Did the plaintiffs voluntarily make the repairs and alterations complained of, or were they made by them under and by virtue of an order of the building department.”

The alterations and repairs indicated were done by plaintiffs because the building in question was deemed unsafe or dangerous, and it is only because of that fact (that the building was; deemed unsafe or dangerous) that the department of buildings would be authorized to require the plaintiffs to do such alterations or repairs.

The law controlling the department of buildings in matters ■concerning alleged unsafe buildings in this city, and the course of procedure to be adopted and followed by said department in such cases, is contained in §§ 507, 509, 510, 511, 512, 518 of chapter ■410 of Laws of 1882 (as amended by chapter 456, Laws of 1885, and chapter 566, Laws of 1887). Section 507 provides “ That all notices directing anything to be done in any building deemed uncafe or dangerous shall be issued by the superintendent of buildings, and shall have his name affixed thereto.”

Section 509 provides that said notice shall require the owner or any person having an interest in such premises to make the same ■safe or secure as directed by said superintendent, and that the person so served shall at once certify to said superintendent his assent •or refusal to comply with the terms of said notice.

Section 510 provides that in case the person served with said notice consents to comply with the terms thereof, he shall be allowed until next day at 1 o’clock, p. M., when he must commence to make the premises safe; it also provides that certain proceedings may be taken by said department in case he fails or refuses to ■comply with said notice.

Sections 511, 512, 518 contain provisions which do not affect this action and are merely cited so as to present all of the sections of said act which apply to cases of this character.

The notice required by § 507 is the initiatory step or proceeding officially taken by the superintendent of buildings in declaring a building in this city to be unsafe or dangerous. Until said notice is issued as in said section provided every building must •be deemed safe and sound, including the premises in question.

I am, therefore, of the opinion that unless the record of this •case shows that such a notice was issued, it must be considered that the alterations and repairs herein referred to were voluntarily done by plaintiffs and were not done in obedience to an order of -the department of buildings, and was consequently the act of plaintiffs and not the act of the municipality.

I have searched in vain the record submitted for the notice required by § 507. The nearest approach to such a notice and upon which the plaintiffs apparently rely in their contention that the work was done because ordered by said department of buildings is a letter addressed to E. E. McCall, Esq., signed by John Shields, chief clerk in said department, in which it is stated that Mr. Brody, the superintendent of buildings, had a survey made of the premises in question and found that the gable wall had bulged two and one-half inches since 1885, and that steps should at once be taken to prevent the wall from becoming dangerous, and for this purpose Mr. Brody desired to see the representatives of the owners at an early day.

This letter is dated October 8, 1889, and is apparently the only communication ever issued concerning said premises, so far as the appeal book discloses. It does not declare the building to be dangerous or unsafe, but anticipates the happening of such an event ; it is not the notice required by said § 507 and evidently was not intended as such by the superintendent. On October 17, 1889, an application was filed, by the alleged owner of said premises to make desired alterations, which was allowed, and the work referred to was commenced and completed thereunder.

It is clear to my mind that the work done by plaintiffs was done because of the suggestion contained in the letter of October 8, and which at that time was not regarded by the plaintiffs or the department of buildings as a proceeding taken under the sections of the law above referred to, although a failure to comply with such suggestion might lead to an enforcement of the law.

Therefore, unless the defendant consented and permitted the plaintiffs to use the part of the demised premises which it is admitted they did use to do the work in question, there was in law an eviction from a substantial portion of the said premises and consequently a suspension of the whole rent until the whole premises were again restored to defendant. With reference to that question the testimony seems to be all in defendant’s favor, he claiming that the eviction commenced in June, ceased about October 1, was again renewed about October 31, and continued until the May following, and that defendant wrote plaintiffs concerning and complained against their intrusion, that he received no written answer to his letter, but that subsequently Hamilton, plaintiffs’ agent, stated to defendant’s wife that the rent would be made all right, but finally stated through their attorneys and personally that they were not liable to defendant for any injury done and that there was no eviction in law, because they were required by the municipality to do said work. As above indicated by me I think this notion was wrong and that they performed the work of their own accord. The jury by their verdict also determined that such eviction continued until May 1, 1890.

I do not think that the reference by defendant’s counsel in summing up to the Equitable Life Ins. Company prejudiced plaintiffs’ cause. I believe the jury decided against the plaintiffs on the merits of the case; besides the remark of the trial justice made immediately after such statement was made and his charge were strong enough to remove any prejudice that any of the jurors may have conceived against plaintiffs because of the said statement; besides this the defendant testified that the plaintiff Golding or Mr. Hamilton told him that the Equitable Life. was the owner of the said premises. This testimony is not disputed. Therefore the statement is based upon testimony in the case the admission of which was not objected to, and therefore it was proper for counsel to refer to it in summing up.

I cannot find any objections taken by plaintiffs which are meritorious enough to reverse the judgment herein.

Judgment affirmed, with costs.

Ehrlich, Ch. J., concurs in result.


text:
    William Dempsey, Resp’t, v. Valentine Moeslein, App’lt.

      (City Court of New York,

      General Term,

      Filed December 29, 1891.)

    Contract—Counterclaim. .
    Plaintiff agreed to pay a debt of his assignor to defendant by conveying to him a house for $21,000, subject to a mortgage of $15,000. Thereafter,in consideration of said agreement, and the delivery of the deed, defendant agreed to pay plaintiff $1,000 if he sold the house for $21,000 in three months. In an action to recover said $1,000, plaintiff alleged that but $5,000 was due to defendant, and that the latter, by false representations, induced plaintiff to put $6,000 in the agreement. This was denied by defendant, who claimed that $6,000 was due him. Held, that the second agreement did not cancel the first, but the first was incorporated in and became part of the second; that a failure to perform the first agreement fully was a failure of the consideration of the second, and that the damages accruing to defendant therefrom constituted a proper counterclaim.
    Appeal from judgment in favor of plaintiff.

      Benno Loewy, for app’lt; John Hardy, for resp’t.
   Fitzsimons, J.

Prior to June, 1889, one Schwarzler, a builder, was engaged in the erection of thirteen houses in Ninety-seventh street, between Third and Lexington avenues.' The plaintiff and defendant were among the contractors who aided him in this undertaking; becoming financially embarassed he transferred said property to the plaintiff with the understanding that he (plaintiff) would finish said houses, arrange Schwarzler’s indebtedness to all the contractors, including defendant, to whom $5,000 or $6,000 was due for iron work.

On June 10, 1889, the plaintiff, in consideration of the performance by defendant of his contract made with said Schwarzler to complete the iron work (which he did fully perform) in said thirteen buildings, agreed to transfer to defendant one of said houses, No. 160 E. Ninety-seventh street, for $21,000, subject to a mortgage for $15,000, leaving an equity in such premises of $6,000, which said sum the agreement recited was the sum agreed to be paid for such work by Schwarzler.

On July 19, 1889, another agreement was made between plaintiff and defendant wherein, in consideration of the above agreement and delivery of the deed of said premises, the defendant agreed to pay to plaintiff $1,000, in case said house was sold by defendant within three months from date of agreement for $21,000.

The deed of said premises was delivered to defendant by plaintiff on July 19, subject to a mortgage for $16,000, leaving an equity in the premises of only $5,000.

The house was sold by defendant within three months for $21,000, including carpets valued at $140.

This action is brought to recover the $1,000 mentioned in the July agreement.

The complaint set out the June agreement and alleges that thereunder there was due only $5,000, instead of $6,000, to defendant, which latter sum the defendant induced plaintiff to put in said agreement by false and fraudulent statements, and that defendant admitted that only $5,000 was due him, and accepted the deed upon that basis.

The answer in substance denies the alleged fraud; also, that he accepted the deed in full settlement of his claim; claimed that $6,000 was the due for said iron work, and as he received only $5,000'equity in said house there was still due him $1,000, and sets up a counterclaim for that sum. He also denies that he sold the premises within three months, and also sets up a counterclaim for the carpets which were in the house, valued at $140.

Upon the trial the plaintiff allowed $140 for the carpets, and the court directed a verdict in plaintiff’s favor for the balance,. $943.85, which included interest.

The trial justice proceeded upon the theory, and in fact stated that the only agreement that could be considered in this action was the July one, and excluded all testimony tending to sustain defendant’s counterclaim for $1,000, arising under the June agreement. In doing so I believe that he erred. Instead of the July agreement canceling and extinguishing the June agreement I believe that it was incorporated in and became part and parcel of the July agreement, the consideration clause of which should be construed as reading, “In consideration of the performance of the June agreement; ” a failure to perform the June agreement fully was a failure of the expressed consideration of. the July agreement and any damages- arising to the promisor therein (in the July agreement) by act of the promisee might be proved and was-a just and proper counterclaim in an action by the promisee under the latter agreement. See Eastman v. Shaw, 65 N. Y., 522, and 122 N. Y., 80; 33 St. Rep., 275.

Unless the plaintiff established that the defendant induced by fraud the making of the June agreement, as claimed by him in his complaint, certainly the defendant was entitled to receive the premises which were conveyed to him subject only to a mortgage-for $15,000, leaving him an equity of $6,000, and as he received, by virtue of said conveyance only $5,000, there was due him $1,000, unless as claimed by plaintiff he recognized the falsity of his claim and consented to accept the premises subject to a mortgage for $16,000. The defendant denied fraud ; denied that he had consented to take said premises subject to the $16,000, and claimed that he accepted the same because he could do no better but still claimed said sum, and at the time of the delivery of the deed claimed that there was still due him $1,000. Even the plaintiff says that the defendant made such a claim at that time.

The defendant should have been allowed to prove that the consideration of $6,000 mentioned in the June agreement was due him, and that he committed no fraud in claiming said sum, and that he did not accept the equity in said premises of $5,000 in payment of his claim as contended by plaintiff, and that he still claimed the $1,000 balance alleged to be due him.

In excluding the testimony tending to establish these facts as he did, the trial justice erred, and a new trial is accordingly ordered, with costs to appellant to abide event of action.

McCarthy, J., concurs.


author: Freedman, J.

text:
    Elkan Blumenthal, Resp’t, v. The New York Elevated R. R. Co. et al., App’lts.

      (New York Superior Court,

      General Term,

      Filed January 11, 1892.)

    1. Railboads—Elevated—Evidence.
    On the trial of an action to restrain the operation of an elevated railroad a witness was asked what, in his opinion, was the value of the easements of light, air and access appurtenant to the premises which have been taken by the construction and maintenance of the road, and was allowed to answer “About $3,000. I mean impairment of fee value.” The court found the damage to fee value to be $2,000. Sold, that the admission of the evidence was error.

      2. Same—Injunction.
    In every case in which it appears that the fee damage is sufficiently substantial to entitle the plaintiff to injunctive relief, the injunction may be decreed without an assessment of the fee damage, provided its operation be stayed for a reasonable time to enable the defendants to acquire title to the property taken by agreement or condemnation proceedings, and the general term may review and determine the question of reasonable time.
    AppeAl from judgment entered in favor of the plaintiff upon the decision of a judge at special term.

      Julien T. Davies and Samuel Blythe Rogers, for app’lts; H. G. Atwater, for resp’t.
   Freedman, J.

This action was brought to restrain the defendants from maintaining and operating their elevated railway in front of plaintiff’s premises, and as incidental thereto to recover damages for loss of rental value occasioned by the past maintenance and operation of the road. The premises, known as No. 1277 Third avenue, are on the east side of Third avenue, near Seventy-third street. The lot is twenty-six feet and one-half inch wide, and eighty feet deep, and is occupied by a five-story building used as tenements and stores. The trial judge awarded $250 for past damages from March 28, 1888 (when plaintiff became the owner of the premises), to November 13, 1890 (the date of the trial of the action), and decreed an injunction unless the defendants, within ninety days from notice of the entry of judgment, acquired by statutory proceedings the easements of the plaintiff used by the defendants for their road, or, within the same period, paid to plaintiff the sum of $2,000, which he found to be the value of such easements.

Upon an examination of the whole case I find that the record presents but one serious question :

At the trial the following question was put to George B. Curtis, a real estate expert, called on behalf of the plaintiff, and the following proceedings took place, viz :

Q. What, in your opinion, is the value of the easements of light, air and access appurtenant to those premises, No. 1277 Third avenue, which have been taken by the construction and maintenance of the elevated road as you have observed it to be maintained and operated ?

Counsel for the defendants objected to the question as improper, incompetent, irrelevant as assuming a fact not proven in the case, as involving an improper subject of damage, as it makes an inquiry on the subject that is not a proper subject of an opinion by the witness, that the witness is not competent or qualified to give an opinion, and as contrary to the rule laid down in the McQean case.

The Court: The part of the question beginning with the words. “As yon liave observed it,” will be stricken out.

Mr. Thomas : I make the same objection to the question as it stands.

The court overruled the objection, and counsel for the defendants duly excepted.

A. About $>3,000; I mean the impairment of fee value,, etc., etc.

The trial judge evidently was not misled by the answer, for he awarded only $2,000, and the other evidence in the case fully sustains his finding in this respect, especially when it is considered that all the stories above the stores were used for residential purposes, and that the nearest station from which the stores might, have derived any benefit was more than two blocks away. ¡Nevertheless, as one of the specific grounds of the objection was that, the fact sought to be elicited was not a proper subject of an opinion by the witness, the defendants brought the case within the: decisions made by the court of appeals in the cases of Robertsr Doyle and Gray, and the error cannot be disregarded under the doctrine of the cases of McGean, Kernochan and Mortimer. I am, therefore, compelled to hold that the exception taken by the defendants in his case to the piece of evidence set forth is a valid and sufficient one, and that the determination of the trial judge: fixing the value of the easements taken by the d efendants at the-sum of $2,000, cannot be sustained.

But inasmuch as no error was committed in any other respect, and .the evidence fully establishes that the fee damage is of so substantial a character as to entitle the plaintiff to injunctive relief and, as incidental thereto, to the recovery of -past damages, I .deem it to be my duty to consider whether a new trial cannot be-obviated.

It has been held in the Galway case, recently decided by the-court of appeals, 40 St. Rep., 145, that the provision for the payment of the fee damage, as the equivalent of the property taken, in avoidance of the injunction in this class of cases, is purely an act of grace and favor to the defendants. True, the discretion of the court, in making such a provision, is not an arbitrary or unlimited one, and whenever the court does proceed to make it, the. amount must be determined upon competent and legal evidence. Roberts v. N. Y. Elevated R. R. Co., 40 St. Rep., 454; Doyle v. Manhattan Elevated R'y Co., id., 474; Gray v. Same, id., 478.

So there is, as was said by Finch, J., in the case of the American Bank Note Co. v. The New York Elevated R. R. Co., 41 St. Rep., 531, no difficulty in assuming that the alternative damages are-awarded to the same extent and for the same elements as the compensation given in a special proceeding for the condemnation of land under the law of eminent domain. Such a process in each case ends in the same substantial redress. The form is different, but the result is identical. It follows, therefore, that the alternative damages of equity must be such, and only such, as would be given in a proceeding for the condemnation of lands for a railroad use, due regard being had to the different characteristics of the property to be taken. By referring back to Taylor v. The Metropolitan Elevated R. R. Co., 50 N. Y. Supr. Ct., 311, it will be found that such was substantially my opinion even in an action brought at law for the recovery of damages.

And, finally, it may be said that, inasmuch as the abutting owners permitted the road to be completed and put into operation before they took any steps to enforce their rights, it would not be equitable, at this late period, to enjoin the operation of the road without giving to the defendants a reasonable time within which to-pay.

I believe I have now fully and fairly stated all the limitations upon the discretionary power of the court to make provision for the payment of the fee damages, as the equivalent of the value of the property taken, in this class of cases, but within these limits the making of any such provision, in avoidance of the injunction, is still an act of grace and favor to the defendants. But making such provision is not the only provision which a court of equity may make as an act of grace and favor to the defendants. After having determined that the fee damage is sufficiently substantial to entitle the plaintiff to injunctive relief, the court may grant an injunction against the maintenance and operation of the elevated railway, and, as an act of grace and favor to the defendants, stay the operation of the injunction for a reasonable time to enable the defendants to acquire title to the property taken by agreement or condemnation proceedings. As long as the time fixed is sufficient for that purpose, the defendants have no right to complain. What is sufficient time may depend upon the peculiar circumstances of each case, and upon this point as well as every other point involving the exercise of discretionary power the defendants will not be concluded by the finding of the trial judge, but may ask to have the same reviewed by the general term. I can find nothing in the opinion of Earl, J., in the case of Gray, which conflicts with the views expressed by me, for what was said there was said on plaintiff’s appeal from an order of the general term which had reversed the judgment and ordered a new trial. That reversal had taken place because of a finding made by the trial judge that the “ premises would not be worth as much as they now are had the railway and stations not been built.” It was in view of this finding and in respect of the claim of the plaintiff that, notwithstanding said finding, the general term ought not to have reversed the whole judgment, but should have permitted that portion of the judgment to stand which awarded the injunction, that Earl, J., used the following language, viz.:

“ The injunction is so dependent upon the damages that the general term could not with propriety reverse the judgment as to damages and permit it to stand as to the injunction. But even if it could have reversed the judgment in part, it is at least generally in the discretion of the court when it finds error in part of a judgment requiring a reversal of such part to reverse the whole judgment, and that discretion will not, certainly except under peculiar circumstances which do not exist here, be interfered with upon appeal to this court.”

In the pioneer of this class of cases, Story v. N. Y. Elevated R. R. Co., 90 N. Y., 122, 179, the opinion of the court of appeals delivered by Trácy, J., concludes as follows, viz:

“ Seventh. The inj unction prohibiting the continuance of the road in Front street should not be issued until the defendant has had a reasonable time after this decision to' acquire the plaintiff’s property by agreement, or by proceedings to condemn the same.”

The rule thus laid down has never been disturbed, although since that time the trial courts have in most cases undertaken the laborious task of fixing the value of the property taken. But in the recent case of Galway, 40 St. Rep., 145, it was expressly held by the court of appeals that neither party to the action can compel the trial court to determine the question.

Having now fully deminstrated that in every case in which it appears that the fee damage is sufficiently substantial to entitle the plaintiff to injunctive relief, the injunction may be decreed without an assessment of the fee damage, provided its operation be stayed for a reasonable time to enable the defendants to acquire title to the property taken by agreement or condemnation proceedings, and that the general term, in the exercise of a sound discretion, may review and determine the question of reasonable time, and it also having been shown that the case at bar is such a case, it only remains to be seen to what extent the judgment appealed from should be modified.

Thd action was begun October 5, 1888, and its commencement was notice to the defendants that the plaintiff made a claim of a substantial character. Judgment was entered April 8, 1891, and by its terms the defendants had ninety days from notice of its entry within which to acquire by statutory, proceedings the property taken from the plaintiff, or to pay the sum fixed by the trial judge as the value of such property. Although apparently dissatisfied with the amount thus fixed, they omitted to take any steps to have any other amount determined by condemnation proceedings. They simply endeavored to prevent the plaintiff, by every device known in legal procedure, from making any headway towards the enforcement of his rights. The same tactics are pursued by the defendants in most of the cases belonging to this class, and their number is very large. The consequences involve serious hardship to other litigants whose cases are greatly delayed, and it is with the view of protecting, if possible, the rights of these other litigants that I have made this extensive examination for the purpose of ascertaining whether a new trial could not be refused to the defendants without a violation of any of their rights.

Under all the circumstances the rights of the defendants will be fully protected by the modification of the judgment as follows, viz.:

Subdivisions 2, 3, 4 and 5 of the judgment should be stricken out, and in place of them the following inserted:

Second. That the defendants above named be, and they hereby are, jointly and severally restrained and enjoined from the further maintenance or operation of their elevated railroad in Third avenue, in the city of Mew York, in front of plaintiff’s premises,, which are more particularly described in the complaint herein, unless within a reasonable time, to wit, six months from notice of entry of judgment herein as modified and affirmed by the general term of this court, the defendants cause the plaintiff’s easements in Third avenue appurtenant to said premises, and which have been taken or interfered with by the defendants for the purpose of their elevated road, to be condemned'and taken for such railroad purposes in the manner prescribed by law, or to be ac-. quired by agreement.
Third. Mo injunction shall issue restraining the defendants from maintaining or operating their said elevated railroad in case the defendants, within six months from notice of entry of judgment herein as modified and affirmed by the general term of this court, acquire title to the easements taken or interfered with as mentioned in the preceding subdivision.”

As thus modified, the judgment appealed from should be affirmed, without costs to either party on this appeal.

McAdam and Gtldersleeve, JJ., concur.