text:
    William C. Lippus, App’lt, v. The Columbus Watch Co., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    ■1. New trial—Services —Exclusion of evidence.
    A jury having found, by their verdict, that plaintiff was rightfully discharged from defendant’s employment, and, therefore, had no cause of action at all, the fact that certain evidence to prove damages sustained was excluded is no basis for the granting of a new trial.
    2. Same—Irregularities.
    The_ jury, by stipulation of counsel, were allowed to take with them the printed case on a former appeal in the action. Portions of certain letters contained therein had been underscored by defendant’s counsel, which fact became known to plaintiff’s counsel before rendition of the verdict, but he made no motion in respect thereto until after it had been received. Held, that he could not thereafter claim the benefit of the irregularity.
    Appeal from judgment entered on verdict and from order denying motion for new trial.

      G. H. Machin, for app’lt; P. L. Wilson, for resp’t.
   Van Brunt, P. J.

This action was brought to recover for services, the defendant having been discharged pending the term, of his hiring.

The defense justified the discharge on the ground of disobedience of rules and incompetency. Evidence having been offered on both sides the jury found a verdict in favor of the defendant. It appeared that at the time the jury went out for the purpose of considering the case that they desired certain letters which appeared in the previous case on appeal, and they were allowed to take the previous appeal book with them by the consent of the attorneys.

It subsequently, but prior to the rendition of the verdict by the jury, came to the knowledge of the plaintiff’s attorney that certain letters contained in this appeal book had been underscored by the defendant’s counsel. The plaintiff’s attorney, however, made no motion in respect thereto, 'but waited until after the jury had rendered their verdict and then moved to set aside the verdict upon the ground of the misconduct of the defendant’s attorney. This motion was denied, and from the judgment and order thereupon entered this appeal is taken.

Exceptions have been taken to the exclusion of evidence in reference to the question of damages, but it is not necessary to discuss this question. The jury having found by their verdict that the plaintiff was rightfully discharged and had no cause of action at all, the mere fact that certain evidence proving damage was not received would form no basis for the granting of a new trial.

It is claimed that it was error to admit a eertain letter from the defendant to the plaintiff dated June 26, 1886, in that this letter purported to be an answer to one received from the plaintiff dated the 23d of June, which latter letter was not offered in evidence. The difficulty with the present objection is that no such objection was taken upon the trial, otherwise it is probable that the letter of the 23d of June would have been offered in evidence by the defendant.

It is claimed, however, that the letter was written after the defendant had been discharged by the plaintiff. But the letter was answered and the correspondence between the parties in reference to this subject matter was necessarily competent evidence. It was not an attempt to make evidence on the part of the defendant; and furthermore it was written before the term of the employment of the plaintiff had ceased.

The only other point which it is necessary to consider is that in respect to the denial of the motion for a new trial on the ground that the jury were improperly influenced by the underscored letters contained in the printed appeal book.

We think that if the learned counsel for the plaintiff had moved before the jury rendered their verdict to have the jury discharged because of this circumstance, he having had ample time to do so, it might very well have been the duty of the court to have granted such a motion. But having known of this fact while the jury were out and were deliberating, and making no motion, but remaining quiet, it seems to us it is too late after the jury have rendered their verdict to raise any such question. Probably he thought that the underscoring was of no moment when he was informed of the fact, but its character became very greatly blackened and emphasized by the verdict of the jury.

It was then that he first supposed that any damage had been done him. He could not be allowed to speculate upon the verdict, and then claim the benefit of this irregularity.

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

Brady and Daniels, JJ., concur.


source: Caselaw Access Project

author: Barrett, J.

license: Public Domain

text:
    The People, Resp’ts, v. Frank A. Pierson, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    Fire-escapes—Chap. 720, Laws 1887, not applicable to New York city.
    Chap. 720, Laws 1887, known as the “Rope act," does not apply to the city of New York, as a complete and thorough system for equipping hotels in that city with fire-escapes is provided hy chap. 566, Laws 1887.
    (Bartlett, J., dissents.)
    Appeal from a judgment of conviction rendered in the court of general sessions of the peace for the city and county of New York.

      W. J. Fanning, for app’lt; McKenzie Semple, asst dist att’y, for resp’ts.
   Barrett, J.

This appeal brings up the question whether the city of New York is excepted from the operation of chap. 720 of the Laws 1887, entitled “An act to provide fire escapes in hotels,” commonly known as the “ Rope act” The appellant claims such exception under § 499 of the consolidation act, as amended by chap. 566 of the Laws of 1887. The latter amendment was passed on the 15th day of June and was made to take effect twenty days thereafter, while chap. 720 was passed on the 25th day of June and took effect immediately.

Chap. 720 is a general law, on its face applicable to the whole state, requiring the proprietors or managers of every hotel exceeding two stories in height, which is not fire proof, to “ place or cause to be placed a rope or other better appliance, to be used as a fire escape, in every room of said hotel used as a lodging room, except the rooms on the ground floor.” Violation of this requirement is punishable as a misdemeanor, and as a means of enforcement provision is made for semi-annual inspections of every room in every city and village hotel in the state. The appellant’s contention is that the amendment of the consolidation act to which we have referred was intended to provide a comprehensive and exclusive system for the city of New York adequate to remedy all the mischiefs aimed at, embracing a much wider area of subjects than the general act, and conferring authority to effect its objects by better and more appropriate means than a single crude makeshift. This contention is well founded and the amendment in question certainly does create such .a system. It is entirely clear from an examination of these acts that the general law was not intended, to repeal, supersede or modify the carefully framed and broad provisions of the special enactment. The real question is whether these acts are both applicable to the locality. Was it intended to superadd the single and special safeguard provided for in the general act to the elaborate system of safeguards furnished by the special act ? After a careful review of these acts, we think this question must be answered in the negative.

The requirement of the single safeguard in the general act is absolute. The authority conferred by the special act is plainly inconsistent with the absolute requirement of any one particular safeguard. That act leaves the entire subject to the judgment of the superintendent of buildings, acting with the concurrence of the board of fire commissioners. This is expressive of the inadequacy of any iron-clad legislative formula, and of the intention to substitute therefor the judgment of a skilled expert, acting from time to time upon progressive ideas with the approval of the local officials, whose functions best qualify them to co-operate with him. Under this special act the hotel keeper may be required to provide the rope called for by the general act. But he may also be required to do much more. He may, in fact, be required to provide genuine and adequate fire escapes, based upon experience and scientific principles. Can it be possible that where this has been done the hotel keeper must also, to satisfy the legislative intent, lumber up each room in his house with a coil of rope? An appliance which, in case of fire, would tend to distract attention from other and better means of escape, and possibly jeopardize the guest’s life by suggesting an attempt to utilize the first and poor- • est device at hand. It seems reasonably clear that that could not have been the legislative purpose. It seems equally clear that the single and imperfect safeguard required by the general act was not intended to operate where special provision for a complete and thorough system was made for any particular locality in the state. Where no such special provision has been made the general law is, of course, operative. The legislature thus, in effect, says, where we have nothing better we will at least have this. Everything in the two acts points to this construction. The general act excludes from its operation fire proof buildings. In such, not even a rope is required. 'The special act makes no such distinction. The practical enforcement of the general act is placed in the hands of the chief engineer of each fire department in the state (or some person deputized by him) and the mayor or other chief executive officer of cities and villages. The special act, as we have seen, entrusts the execution of its requirements to the superintendent of buildings acting in one line of duty alone, and in another with the concurrence of the board of fire commissioners.

This last consideration suggests a seeming inaccuracy in one statement made in his brief by the learned counsel for the respondents. He says that the only provision in the special act on the subject in question is that which authorizes the superintendent of buildings to direct what fire-escapes and means of egress shall be provided for buildings occupied as hotels “ more than three stories in height and having more than fifteen rooms." ' If this were all there might be some force in the argument that the mischiefs aimed at were not fully covered. But reading further on in the same section we find the following additional provisions :

“In all buildings of a public character already erected, or thereafter to be built in said city, such as hotels, churches, theatres, restaurants, railroad depots, public halls and other buildings used, or intended to be used for the purposes of public amusement or instruction, the halls, doors, stairways, seats, passageways and aisles shall be arranged as the superintendent of buildings, with the concurrence of the board of fire commissioners, shall direct, to facilitate egress in case of fire or accident, and to afford the requisite and proper accommodation for the public protection in such cases. * * *
“ The superintendent of buildings, with the concurrence of the board of fire commissioners, may at any time serve a written or printed notice upon the owner, lessee or manager of any said buildings, directing any act or thing to be done or provided in or about the said buildings and the several appliances therewith connected, such as halls, doors, stairs, windows, seats, aisles, and fire-escapes, so as to afford such security to the public in the uses to which they may be severally applied, as they may deem necessary."

Thus buildings of every kind and class used for hotel purposes are brought within the operation of the law, and the local officials are authorized to exercise their judgment with regard to hotels of the character specified in the general act as fully as with regard to any other structure.

It will be observed that the general act was passed but a few days after the special act. Now the latter exhibits the utmost care in its preparation. It is minute, detailed, comprehensive and seemingly all-sufficient. It is scarcely conceivable that after all this the legislature intended a few days later to say to the officials upon whom they had conferred such broad powers: there is one point, however, upon which you shall not exercise any discretion, and that is, as to having a rope or other better appliance in every room. That must be, whether you can improve upon it or not; whether it mars your more scientific methods or not. Finally the argument is pressed upon us that as the special act repeals all former provisions of the local law for criminal prosecution of offenders against fire-escape laws, it must have been because a substitute was contemplated in the criminal provisions of” the Rope law. We think that this suggestion of legislative “looking forward” is quite gratuitous. There was nothing in the surroundings to justify such an implication. A substitute for these criminal provisions, and an exceedingly effective one, was provided in the special act itself, namely, 'the provision of § 513 authorizing the fire department, in case the directions of the superintendent are not complied with, to ask the supreme court for an order directing the department to vacate the building until compliance is made; also authorizing the department to do the work itself and to charge the expense as a lien upon the building. With such practical and efficient remedies, resort to the criminal law became unnecessary. The object of punishment was to compel the result. It was a means to an end. Here the end was accomplished directly, and indirect means are superfluous.

Our conclusion is that the city of New York is not within the operation of the general act in question, and that, therefore, the judgment should be reversed and the defendant discharged.

Yan Brunt, P. J., concurs; Bartlett, J., dissents.


text:
    Adolph Ansbacher et al., App’lts, v. Isaac Pfeiffer, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    1. Fraud.
    Actionable fraud is a deception as to material facts, connected with the particular transaction complained of, practiced in order to induce another to part with property, or to surrender some legal right, which accomplishes the end designed and which results in damage.
    2. Same—Release of contract for services.
    Plaintiffs paid defendant a sum of money to release them from their contract to continue to employ him for the balance of a year, and now seek to recover the same amount from him by way of damages for deception, on the ground of an alleged false statement made by him as an inducement to such payment, to the effect that a partnership, into which he was about to enter, would commence January 1, 1887, when, in reality, such partnership was to commence October 1, 1886. Held, that every element of actionable fraud, as above defined, was wanting.
    Appeal by the plaintiffs from a judgment rendered against them upon a dismissal of their complaint at circuit

      Samson Bachman, for app’lts; B. F. Finstein, for resp’t.
   Barrett, J.

This action was brought without a due appreciation of what, in a legal sense, is meant by fraud. The plaintiffs paid the defendant, who was in their employ as a traveling salesman, $600 to release them from their contract with him. They now seek to recover back this sum upon the novel ground that they would never have offered him the money but for a false statement which he made regarding a partnership which he had formed with one Lavanburg. The plaintiffs thought that this partnership would militate against the defendant’s usefulness to them, and they desired to sever the connection at once. This was in August, 1886, but under the contract the employment ran until the end of the year. The partnership was to commence on the 1st of October, 1886, and prior to that time, indeedj as far back as June, the defendant' and Lavanburg were engaged in making preparations for the commencement of the business. The false statement complained of by the plaintiffs was, that the partnership would not commence until the 1st of January, 1887. They declare that if they had known the truth, and had not been deceived by this statement, they would not only have refrained from the offer of $600, but would have discharged the defendant summarily. In other- words, they would have treated the defendant’s agreement to go into business with Lavanburg on the 1st of October (coupled with the preparations which were being made) as a breach of his agreement with them, and would have severed all further relations with him. Whether they would have done this or not, we cannot know. Whether if they had done so, they would have been sustained by the law, is open to question. They would have had no right in August to discharge the defendant merely because he had contracted for a partnership to commence at a future date. They would at least have had to wait until the 1st of October, and their right to discharge him at that date would have depended rqpon what then occurred with regard to the partnership. Certainly the preliminary acts of preparation were not of themselves sufficient to justify a discharge. At all events, it is not so entirely clear, either upon the facts or the law, that if the plaintiffs had known the exact truth with regard to the partnership they would have had a legal right to discharge the defendant. The claim, therefore, that the defendant’s falsehood cheated the plaintiffs out of that right, is baseless and far-fetched. So also is the further claim that the defendant by his false statement cheated the plaintiffs out of the $600. His statement had no relation to this payment. It was made solely in connection with his expressed determination to continue his services and to complete his contract That was what he insisted upon. He never asked the defendants for a penny. They, on the contrary, asked him to accept the money, and to release them from the contract, which he did.

Actionable fraud is a deception practiced in order to induce another to part with property or to surrender some legal right; and which accomplishes the end designed. Cooley on Torts, 1st ed., 474. The false statements must be material, must be connected with the particular transaction complained of, must be made to influence the opposite party’s conduct, and must be relied upon by such party. And, further, damage must be shown, and such damage must follow proximatelv the deception. The plaintiffs’ case comes within none of these rules. The false statement was not material to the transaction sought to be avoided, nor was it connected therewith. If the defendant had claimed $600 as his prospective loss, and had induced the plaintiffs to pay that sum by misrepresenting his sales, or by any other assertion as to a material and existing fact bearing upon the question of his earnings, the false statement would have been material and would have been connected with the transaction complained of. But a false statement as to a fact which had no direct relation to the compromise, and which was but one of several elements in Mr. Ansbacher’s mind when he concluded to make the offer, cannot be said to have been material or connected with the consummated transaction. It is entirely clear that the false statement was not made to induce Mr. Ansbacher to offer the money. The defendant seems to have had nothing of the kind in his mind, and, as already suggested, his sole purpose was to proceed under his contract and to complete his term, and non constat, if the contract had not been cancelled, but he would have done so faithfully and to the satisfaction of all concerned So as to the question of reliance. It is an entire misconception of this doctrine to talk of the plaintiffs relying upon the defendant’s statement, when they decided witlio ut solicitation to make him an independent offer of money to give up his contract. The truth is, they wanted to get rid of him because "they feared tnat his partnership interests would conflict with his duty to them. They wanted to have some one on the ground devoted exclusively to their interests. To accomplish this without further friction, and especially without a law suit, they were willing to pay what they did pay.

Whether the partnership commenced a little sooner or a little later was of small moment He insisted upon continuing. They insisted upon his leaving. They paid him $600 to yield his position, and they now talk of that sum as the damage proximately following an untruthful statement made by defendant in the course of the dispute. An untruthful statement with regard to what? With regard to an outside matter of business which might possibly have affected the plaintiffs’ interests, respecting which, therefore, they were more or less concerned. That is all that can be said of it, and no damage whatever followed the statement, proximately or otherwise.

But we have considered this question more fully than it deserves. We might have contented ourselves with a bare statement of the plaintiffs’ claim. The case is without merit, and the judgment should be affirmed, with costs.

"Van Brunt, P. J., and Bartlett, J., concur.


author: Van Brunt, P. J.

text:
    Eunice A. Bigelow, App’lt, v. Sarah J. Doying and William J. Bailey, Impl’d, Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    1. Fobeclosube—Subplus pboceedings.
    It is the duty of a referee in surplus proceedings to incorporate in his decision all the facts found by him, including those found at the request of any party to the proceedings.
    2. Mechanics’ lien—Continuance—Laws 1885, chap. 342, § 6.
    An order continuing a mechanics’ lien filed under the act of 1885, which prescribes no limit of time, continues such lien until the order is vacated or the lien is disposed of in one of the other manners provided for by the statute. Successive orders of continuance are not necessary.
    Appeal by the defendant, William J. Bailey, from order distributing surplus moneys.

      Jamos P. Campbell, for app’lt; John 0 Shaw, for resp’ts.
   Van Brunt, P. J.

The facts material to the point raised upon this appeal are as follows:

Sarah J. Doying being the owner of premises situated at Minth avenue and Sixty-ninth street, in the city of Mew York, mortgaged the same to John C. Shaw, which mortgage was duly assigned to the plaintiff in this action hv Shaw.

In October, 1887, the appellant duly filed a lien against said premises for labor and materials furnished for buildings which were being erected on said premises, which was duly docketed in the office of the clerk of the city and county of Mew York. In May, 1888, the said Sarah J. Doying conveyed the said premises to the said John C. Shaw. In July, 1888, one Meyer, who had Mso filed a lien against these premises, commenced an action to foreclose the same, making the appellant Bailey a party defendant, .as a lienor, and Bailey duly filed a notice of lis pendens.

In October, 1888, Bailey procured an order from the court of common pleas which provided that his lien “ be and hereby is •continued pursuant to § 6, chap. 342, of the Laws of 1885,” and the clerk of the city and county of Mew York was directed to make a new docket of the lien continued by said order, which he did.

In Movember, 1888, John C. Shaw conveyed the premises in question to the Bloomingdale Store & Apartment Company.

In February, 1889, this action to foreclose said mortgage was begun, the above named lienors being parties defendant, and such proceedings were had therein that in April, 1890, the premises were sold under a decree of foreclosure and sale entered in this action, and in May, 1889, a surplus resulting upon such sale was paid to the chamberlain.

In J une the lien suit brought by Meyer was discontinued by consent and the notices of Us pendens cancelled. The appellant then filed his claim to the surplus moneys. In July the appellant Bailey moved to set aside the order discontinuing the action of Meyer, which was denied, and in August, upon the application of the said Bloomingdale Store & Apartment Company, an order of reference was made referring it to a referee to determine the priority of claims upon said surplus moneys, and after a hearing the referee reported in favor of the Bloomingdale Store & Apartment Company, which report being confirmed at special term, from the order thereupon entered, this appeal is taken.

It should be observed that the referee in the making up of his report has totally failed to comply with the requirements of the Code, which require the court or referee trying the cause to incorporate in the decision the facts found, so that a party may found his appeal upon the report and judgment or order entered thereon, if it is claimed as it is in the case at bar that upon the facts found the conclusion is erroneous, without the unnecessary labor of making a case.

The referee in the case at bar has incorporated in his decision none of the facts found at the request of the appellant, and his report ought properly to be sent back to him, in order that he frame proper findings. The very object of requiring requests to find to be submitted before decision is that all the facts found may be included therein.

It seems to us clear that the referee erred in holding that the ■appellant’s lien had expired after the expiration of one year after its continuance. The statute under which this lien was filed, Laws of 1885, chap. 342, § 6, provides as follows: “ Mo lion provided for in this act shall bind the property therein described for a longer period than one year after the notice of lien has been filed, unless within that time an action is commenced to enforce the same, * * * or unless an order be made by a court of record continuing such lien, and a new docket be made stating such fact.”

There is no provision whatever in this act as to the length of time that the order shall be operative, but there are methods provided by which an owner may compel a discharge of a lien, or the commencement of an action to foreclose the same.

The order continuing the lien in the case at bar simply continued the lien for no definite time, but for such time as the statute permitted.

It seems to us clear that it was the intention of the legislature that after such a lien was continued generally without any limitation as to time, it should continue- until the vacation of the order of continuance or until the lien was disposed of in the other manners provided by the statute. The court continuing the lien could of course vacate such continuance upon proper cause shown..

This view is sustained by the fact that in the lien law of 1882,. although not applicable to the city of ¡New York, successive orders of continuance are provided for, while in the act of 1885-there is only one order of continuance allowed.

We cannot see why the effect of the order of continuance should be limited to one year any more than to one month, the statute being silent upon the subject It was evidently the intention to leave the matter to the discretion of the court making the order to limit its operation if they saw fit.

In the case of Newell v. Warren, 44 ¡N. Y., 244, a similar statute was construed. This case arose under the act relating to-chattel mortgages. The act provides that a chattel mortgage shall be void as to creditors unless the mortgage or a copy thereof is filed as directed in the statute. It is then provided that the mortgage shall cease to be valid after the expiration of one year unless within thirty days preceding the expiration of that year a true copy be again filed, and it was held that a mortgage once refiled was valid forever or until some statute of limitations should run against it

So in the case at bar there is one of two conditions which' must be complied with in order that a lien may be continued beyond a year, viz.: Commencement of an action to enforce the lien, or procuring an order continuing the same. When either of these-conditions are complied with the lien is continued until the action or order is disposed of. In the event of the granting of an order the court can of course limit the length of continuance, or in a proper case entirely refuse to continue.

It is urged by the respondent that the case of Darrow v. Morgan, 65 N. Y., 333, is an authority to the contrary. This case arose under the lien law of 1863 in which the language is of similar import to that of the act of 1885.

It may be true that the court in the case cited may have used language in hostility to this view, but no such question was before the court, and no attempt is made to adjudicate upon it. An examination of the original record of the case filed with the court of appeals shows that the order continuing the lien was general in its language and did not attempt to confine the continuance to ■any particular time. This case would, therefore, have been an authority in favor of the position of the respondents in respect to the lien law of 1885 had there been any question to be determinéd by the court-of appeals in respect to the continuance of the lien mentioned in that case.

But the opinión of the court, as has already been suggested, had no reference to the question as to whether the lien had been legally continued or not; but only related to the question before it, whether a court of original jurisdiction had a right under such •circumstances, viz., where a lien had expired, to enter a personal judgment. We think, therefore, that the case cited is not an authority which overruled the principle laid down in the case of Newell v. Warren, supra; and, therefore, cannot control in the ■disposition of the question now before the court.

The claim that the proceeding in the court of common pleas to vacate the order of discontinuance in the case of Meyer v. Doying in any way affects the right of the appellant to raise the question as to the existence of his lien in this proceeding cannot be sustained, if for no other reason, because it does not appear in the order of the court of common pleas that any adjudication whatever was made upon that point. Reference, it is true, is made to it in the course of the opinion, but it is well settled that an opinion cannot be adverted to in order-to ascertain the grounds upon which an order has been made.

It may very well be questioned, had the order expressly proceeded upon the ground that the lien of the appellant had expired, whether such adjudication in that proceeding by the court of common pleas would have been binding upon this court in the proceedings now before it.

The exceptions to the referee’s report should be sustained and the order confirming the same reversed, ancla reference ordered to .a new referee to determine the priority of the liens upon the surplus moneys, with costs to the appellant to abide the event of the future reference.

Daniels and O’Beien, JJ., concur.


author: Van Brunt, P. J.This

text:
    Joseph Libmann et al., Resp’ts, v. The Manhattan Elevated R. Co. et al., App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891)
    Railroads—Elevated—Election as to theory of action.
    When the complaint in an action, though demanding equitable relief, contains allegations entitling the plaintiff to proceed on the basis that the construction and operation of an elevated road constitute a nuisance, or that they constitute a trespass, the defendant is entitled to have plaintiff put to his election before commencing the trial whether he will proceed as upon a nuisance or as upon a trespass. If plaintiff declare on the basis of a nuisance, defendant is entitled to a trial by jury, no matter what the form of the action, and it is error not to compel the, election with the result of trying by the court issues which defendant’ might have been entitled to have tried by a jury.
    Appeal from judgment entered on decision at special term.

      E. G. James, for app’lts; E. W. Tyler, for resp’ts.
   Van Brunt, P. J.This

action was brought to enjoin the continuation and operation of the defendant’s elevated railroad in front of certain premises in the city of New York, the allegations' of the complaint being that said structure, as it now exists and as above described, has been erected and maintained without legal right, and is a special nuisance and injury to the plaintiffs and their premises, and the complaint demanded that the amount of the damages sustained by reason of the existence of said road and structure should be ascertained and that they have judgment against the defendants therefor, and also for an injunction perpetually. enjoining and restraining the continuation of the nuisance.

At the commencement of the trial the counsel for the defendants moved to strike the case from the equity calendar upon the ground that it-was substantially an action for damages, and that it be sent to the circuit for trial by jury. This motion was denied, and the defendants excepted. The defendants’ counsel also made the same motion, upon the ground that it was an action for a nuisance, which was denied, and an exception taken.

Thereupon the defendants’ counsel moved the court to compel the plaintiffs to elect, whether they would proceed upon the basis that the construction and operation of the elevated road was a nuisance, or on the basis that the legislative authority was irrelevant and no defense, and, therefore, the defendants’ acts were in the nature of a trespass. The court denied the motion, and defendants’ counsel duly excepted.

The latter ruling, we think, was error. If this was an action for a nuisance, the defendants were entitled as matter of right to a jury trial. Hudson v. Caryl, 44 N. Y., 553. It was also held in that case that if the complaint is in form as for equitable relief against the continuance of a nuisance, and the prayer for damage may be regarded as incidental thereto, yet as the existence of an alleged nuisance and the amount of damages were both inquired of by a jury before the adoption of the present constitution, the constitutional guaranty of trial by jury applies to such an action as one of the cases in which has it .been heretofore used.

, Tinder these circumstances, there being allegations in this complaint which entitled the plaintiff to proceed as for a nuisance as well as for a trespass, and the defendants being entitled to a jury trial if the action proceeded as one upon a nuisance, it was matter of right before proceeding with the trial that it should be determined upon which ground the ¿plaintiffs proceeded.

Therefore when the defendants asked that the plaintiffs should elect whether they proceeded as for a nuisance or as-upon a trespass, such election should then have been made by the plaintiffs in order that it might be determined as to whether the defendants were or were not entitled to a jury trial. The defendants were not compelled to go into the trial the case to be treated at the option of the plaintiffs as an action for a nuisance or as an action for a trespass, and they might with perfect safety have stopped, then and there and refused to go on and relied upon their exception. Merely because they did thereafter go on in no- way impaired their rights or took away the valid exception which they had taken at the commencement of the trial. They were placed in a position in reference to the trial of the cause which they should not have been made to assume.

They were entitled to know at the outset whether the plaintiffs were proceeding upon a cause of action entitling the defendants to a jury trial or not.

There are many cases to be found in the books in which it has been held that where a plaintiff brings suit in equity, although ordinarily he may be entitled to a jury trial, he has thereby waived the same and cannot demand as matter of right under these circumstances the benefit of a trial by jury. But no case has been found, and we do not see how it could be followed if it had been, which holds that because a plaintiff has filed a bill in equity for relief for a cause of action in respect to which the. constitution provides that the defendant is entitled to a jury trial, he can by so doing deprive the defendant of such jury trial.

We think, therefore, that for the error which was committed, without considering the other questions in the case, the judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Brady and Daniels, JJ., concur.


author: Daniels, J.

text:
    Harmon H. Hart, App’lt, v. Theodore W. Myers et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    Partnership—Services oe partner—Liability eor services of substitute IN CASE OF ILLNESS.
    Where the articles of copartnership require each of the partners to give his entire time and attention to the business, a partner can relieve himself from the obligation to render the service by reason of his illness only when that service is personal in its nature, and cannot be equally as well performed by anotber person. If that can be done, the partner disabled by illness is required to indemnify his copartners against the expenses incurred by them in securing the performance of the same services by another person.
    Appeal from a judgment recovered on the report of a referee.

      Michael H. Gardozo, for app’lt; Simpson & Werner, for resp’ts.
   Daniels, J.

The principal object of this action was to settle the accounts of a partnership previously existing between the plaintiff and the defendants. It was formed by a written agreement made on the 31st of December, 1888, and to continue to and terminate on the 31st of December, 1890, with the privilege, however, to end the partnership on the last day of December, 1889. In the settlement of the affairs of the partners, the plaintiff was charged with the sum of $1,742.77, besides interest, for the expenses which were paid for the services of an assistant in the business during the period of his illness and inability to take charge of and manage the part of it which had been assigned to him. He was the party of the second part in the agreement. And by the fifth subdivision of the articles it was covenanted that:

“ The said parties of the second and third parts do bind themselves to give their entire time and attention to the business of the said co-partnership, the party of the third part agreeing to attend to all the business upon the New York Stock Exchange, and the party of the second part agreeing to give his time and attention to the office business.”

And it appeared by the evidence in the case that the plaintiff from the last of October, 1889, until, the close of the year failed to perform the duties in the business which had been in this manner assigned to him. This failure was caused by his personal illness, rendering him incapable of giving his efforts and attention to the business for most of this interval of time. And during that period another person was employed by the other two partners, who performed the services which were within the scope of the plaintiff’s obligation. He was charged in the manner already stated with the amounts paid to that person, and it is to review the legality of that charge that this appeal has been taken from the judgment.

To maintain the appeal the legal principle has been referred to which has frequently been applied to absolve persons from the performance of their contracts for the rendition of their services when that has been prevented by illness. As a legal proposition this principle has become very well settled in the law, but it has been applied only so far as to relieve the party from the obligation to perform Iris agreement when the services required from him are personal in their nature and necessarily to be rendered by himself. That was the fact in Boast v. Firth, L. R., 4 C. P., 1. There the party who was bound by the agreement was an apprentice and failed by reason of illness to proceed with his service. And it is evident from the service he was to render that no other person was capable of fulfilling the agreement.

In Robinson v. Davison, L. R., 6 Exch., 269, the services to be rendered were those of a pianist, which were as strictly personal in their character as those mentioned in the other case. And that seems to have been the nature of the services brought in controversy in the case of Wolfe v. Howes, 24 Barb., 174; 20 N.Y., 197.

They were considered and held by the court to be services capable of being rendered only by the individual who had agreed to perform them. And for that reason the party obligated was absolved from the performance when that became impractical by reason of his illness.

But the services which the plaintiff in this case undertook and agreed to perform as a membér of the firm were not strictly of this character, for they could be, as by the evidence they appear to have been, adequately performed by another person skilled in and acquainted with the business which the firm transacted and carried on. And where that is proven to be the fact, there this general principle becomes inapplicable. By entering into the agreement which he did the plaintiff assumed as broad an obligation with his partners for the rendition and performance of these services as though it had been created under a different agreement not constituting the relation of partners between the parties to»it. And the other parties were entitled to insist upon its observance by him. in the same manner and to the same extent as though it had been an agreement with him as a subordinate agent. And in this class of cases it has accordingly been held as a general proposition, where one of the partners may have failed to perform the obligation in this manner created, that he is chargeable in the settlement of the partnership affairs with the expenditures that may have been incurred and made because of that circumstance. Stegman v. Berryhill, 72 Mo., 307; Marsh's Appeal, 69 Pa., 30; Leighton v. Hosmer, 39 Iowa, 594; Airey v. Borham, 29 Beav., 620; McDonald v. Richardson, 10 L. T., 166.

And the party can relieve himself from the obligation to render the service by reason of his illness only when that service is personal in its nature, and cannot be equally as well performed by another person. If that can be done, then this general principle maintained by these authorities will require the partner disabled by illness to indemnify his copartners against the expenses incurred by them in securing the performance of the same services by another person.

This principle was sanctioned in the case of Wolfe v. Howes, 20 N. Y., 197, in which the statement was approved: “That where the contract is for personal services which none but the promisor can perform, there inevitable accident, or the act of Grod, will excuse the non-performance and enable the party to recover upon a quantum meruit.

“ But where the thing to be done or work to be performed may be done by another person, then all accidents are at the risk of the promisor.” Id., 201-2. And this was likewise sanctioned in Williams v. Vanderbilt, 28 N. Y., 217, 223. And it was indirectly, also, in Spalding v. Rosa, 71 N. Y., 41, where it was said that: “ Contracts of this character for the personal services, whether of the contracting party or a third person, requiring skill, and which can only be performed by the particular individual named, are not in their nature of absolute' obligation under all circumstances,” but “ are subject to this implied condition, that the person shall be able at the time appointed to perform them; and if he dies, or without fault on the part of the covenantor becomes disabled, the obligation to perform is extinguished.” Id., 44. And to the same effect is the case of Wheeler v. Connecticut Mut. Life Ins. Co., 82 N. Y., 543, in which it was held that “Where the contract is for personal services, which none but the person contracting can perform, inevitable accident, or the act of Grod, will excuse non-performance. But where the thing or work to be performed may be done by another person, then all accidents are at the risk of the promisor,” Id., 550. And Hunter v. Little, 17 W. Dig., 500, maintains the same point. This qualification of the principle invoked to sustain the appeal is directly applicable to this action, for it appeared beyond controversy that the services which the plaintiff had obligated himself to render as a member of the firm were capable of being performed by other persons. And as that was the fact, this principle imposed upon him the duty of securing performance in that manner. And when he failed to do that, it followed that the other members of the firm were entitled to provide for that performance as they did, and to charge him with the necessary expenses to which they were subjected in securing that end. The charge made against the plaintiff in the settlement of the partnership was, therefore, legal and proper, and the judgment should be affirmed, with costs.

Yan Brunt, P, J., and Brady, J., concur.


author: Brady, J.

text:
    Julius Chesebrough, Resp't, v. Daniel D. Conover, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    Hew trial—Refusal to allow witness to explain.
    Where a witness called for the plaintiff, while laboring under excitement caused by what he considered a savage attack on him by defendant’s counsel, makes a charge against defendant’s character not responsive to any question asked him, and is not allowed by plaintiff’s counsel thereafter to correct or explain his error, a new trial should be granted on that ground. It is the duty of counsel m develop the truth and to give witnesses called on behalf of their clients an opportunity during the trial to correct any statement made while under examination.
    Appeal from an order denying a motion to vacate the judgment

      Austen G. Fox, for app’lt; Lewis Sanders, for resp’t.
   Brady, J.

It appears from the record that this action was brought to recover for services rendered to the defendant at his request. His answer was a denial. The issue thus made was brought to trial in June, 1890, when the plaintiff testified to ■ the rendition of the services at the plaintiff’s request and the defendant contradicted the statement thereto directly. The scale was thus apparently evenly balanced and the only evidence given to turn it was that of Edward P. Phelps, who was sworn on behalf of the plaintiff. He was a material witness, it is said in the affidavit of the defendant, and his manner on the stand evidently impressed the jury. Th'e whole of what he testified to we are not shown by the record, but it appears that upon cross-examination he was asked whether he had sent a telegram which was exhibited to him, and answered, “I may have sent it.” He was then asked, “ Have you any doubt about it? ” He said, “ I don’t know whether I have any doubt about it or not.” And again, “ W'hat is your best recollection ? ” And the answer was, “Yes, coming through Mr. Conover’s hands, I have a doubt about it.” “ Have you any reasonable doubt that you sent it ? ” “Yes,” was the answer, “ coming through his hands, I have. He would forge a man’s name as soon as he would do anything else. Maybe he have been at and sent it.”

He was then asked a series of questions, but the object was to show that the answer in reference to Mr. Conover’s readiness to forge a name was not responsive to any question asked him and was a statement volunteered by him. Both of which propositions. he admitted. The trial lasted three days and on the third day a verdict was rendered against the defendant and a judgment entered for $1§,102.17. It also appears that within a few days thereafter, to wit, on the 23rd of June, 1890, Phelps, without the solicitation and to the surprise of the defendant, sent a letter to the latter (a copy of which is set out in the record), and in which he admits that in the evidence he gave in reference to the defendant he wrongfully charged him with a willingness to commit a heinous offense, and which charge, he said, “ I now wholly retract, as I had not reason then to believe, and do not now believe, you (meaning defendant) would do anything of the kind.”

He also stated that while under the influence of great excitement, caused by the savage attack of the defendant’s lawyer upon him and his character, he said then what he had deeply regretted since it was uttered. And still further, that he did not fully realize the nature and scope of his statement until he read it as reported in the following morning papers, and went at once to the court, and before the trial was concluded, to have the complaint withdrawn and the evidence corrected accordingly, but that Mr. Saunders, the plaintiff’s lawyer, vjould not let him do it, and therefore decided in writing directly to the defendant to make some reparation for the wrong he had made.

The response made to this state of facts by the plaintiff is in an affidavit made by him, the purport of which is that Mr. Phelps, on the day succeeding that on which he gave his evidence, was told that he was liable to be arrested and be sent to prison for what he had said about the defendant. And that three or four days afterwards a Mr.’Cozens had said to Phelps that the defendant had been to see him and said that he was going to have Phelps arrested, but that he had received letters from various people asking him not to have it done, and that, under fear and threat of arrest, Phelps and his son had drafted a letter to defendant which was submitted by Phelps to Cozens and left with him for revision, which was made, and that Phelps informed the plaintiff of all these facts. There is no denial, however, by Mr. Saunders of the statement of Mr. Phelps that he had refused to permit the latter, while the trial was in progress, to make the correction which he contemplated and which lie went to the court for the express purpose of making, and the fact that he did go to court for the purpose mentioned is wholly inconsistent with the statement made in the plaintiff’s affidavit that three or four days afterwards Mr. Cozens communicated to the defendants his intention to have Phelps arrested and that under that fear and threat Phelps had drafted the letter to which reference has been made. This is so for the reason, as we have seen, that Phelps appeared at the opening of the court on the day succeeding the day on which he gave his testimony, determined to withdraw the charge then in reference to the defendant’s readiness to commit forgery, and in the proper way. There can be no doubt that in a closely contested case, as this appears to have been, Phelps’ statement, as originally made, would have an effect upon the jury, an effect, indeed, undoubtedly prejudicial to his credibility. And there is no doubt, either, that when the application was made to Mr. Saunders for the opportunity to make the correction Mr. Phelps felt bound conscientiously to do, he should have been permitted to do so, and the jury thus advised of the circumstances and the feeling which induced him to make the accusation. It is not necessary to resort to precedents to show that the right of explanation is one of grave importance, duly respected by the courts and always allowed.

It is well recognized in the ordinary proceedings of a trial. It is done ex débito justitice, and in many cases at which I have presided, and in which witnesses have sought to explain their testimony, it has never been refused. It is true that in the case of The People ex rel. Stemmler v. McGuire, 2 Hun, 269, an affidavit made by a person who was a witness on the trial, and in which he admitted having committed perjury, was disregarded, but for the reasons that when his affidavit was made it was quite evident no latitude of indulgence would justify the belief that he was then truthful. That he might have been so on the trial, but when his affidavit was made., he certainly was not so. And more particularly for the reason that his evidence in the case was substantially the same as that given by another witness who, at the time of the occurrences testified to, was similarly employed, and whose truthfulness no reason appeared for doubt But that case was entirely different from this. There was no application there to correct the evidence given made during the trial Aside from that, the testimony of the witness in that case went to the main issue. Here the charge against the defendant was collateral; was not responsive to any question asked, and was expressed under great excitement, caused by what the witness considered to be a savage attack upon him and his character. And what he said was an opinion-seriously affecting the defendant’s integrity, springing from a feeling of resentment or indignation, and therefore impulsive and wrong. It may be that if the application-, which was made to vacate the judgment and for a new trial, did not present the impressive fact that the witness sought the counsel of the ulaintiff on the day following the utterance of the testimony to correct his error, the application might, in the exercise of a sound discretion, have been denied, but with that fact uncontradicted the administration of justice seems to demand a new trial. It is clearly the duty of counsel to develop the truth in all controversies so far as may be, and undoubtedly to give the witnesses called on behalf of their clients an opportunity during a trial to correct any statement made while under examination as a witness.

The order appealed from should for these reasons be reversed, with ten dollars costs and disbursements, and the motion granted.

Yan Brunt, P. J., and Daniels, J., concur.


text:
    Michael R. Schwartz, Adm’r, App’lt, v. John M. Cornell et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    Master and servant—Assumption op risks.
    If a servant, before he enters service, knows or afterwards discovers, or if, by the exercise of ordinary observation or reasonable skill or diligence he may discover, that the building, machine, or fellow-servant, with whom he is to labor, is unsafe or unfit, and if, notwithstanding he voluntarily enters into or continues in the employment, without objection or complaint, he is deemed to assume the risk of the danger thus known or discoverable.
    This is an appeal from a judgment dismissing plaintiff’s complaint and from an order denying a motion for a new trial.
    The action was tried before Judge Ingraham and a jury, and at the close of plaintiff’s case a nonsuit was ordered.
    Charles A. Schwartz, a sober, industrious, active young man, twenty-three years of age, for several years prior to August 14, 1888, had been an employe of J. B. & J. M. Cornell, large iron workers and builders of iron buildings in the city of New York, and who, on the 14th of August, 1888, were engaged in erecting and placing the iron work in a large building for the Edison Electric Light Company, at 47 and 49 W est Twenty-sixth street, in this city.
    He had been a master mechanic since reaching twenty-one years of age, but his education and work had been that of an inside as distinguished from an outside workman. This distinction between inside and outside workmen in the iron trade is a marked one, the inside man attending simply to preparing and getting out the iron, filing, fitting, etc., in the shop, whilst the outside workman goes upon the building and puts up the girders and other iron as prepared for him at the shop. Schwartz had never worked on an outside job before. Experience and education, therefore, had not taught him to walk beams with a clear head, nor to appreciate dangers that to one brought up to the business were apparent and carefully avoided.
    Fink, Schwartz’ helper, was also an inside man, and the same is true of the entire squad of men working on the same floor with him.
    Bomer was foreman of this squad, also an inside workman, and was totally inexperienced 'in superintending men working outside the shop.
    This inexperience was known to defendants, for one of their chief foremen, George Cornell, told a workman sent to this very job that “Bomer did not know what in — he was doing.”
    William Henry Schwartz and John Penny were both sent to the building to do some work there, and were unable to -find Bomer there, and although Bomer was foreman in charge of all men there, under instructions from George Cornell, they did their work without consulting him at all. Bomer says he also had charge of another job on Thirty-ninth street, and was only at this job off and on for an hour or so. The deceased was a wide-awake, cautious fellow.
    About a week before August 14, 1888, Charles Schwartz and his eleven uneducated companions, in charge of John Bomer, had been taken out of the shop and placed at cutting and fitting corrugated iron between iron girders for the purpose of making a foundation for a cement floor, at the above building, Nos. 47 and 49 West Twenty-sixth street. This floor, about 100 feet long by sixty wide, was divided lengthwise into three parts by two heavy transverse girders which formed the foundation of iron pillars supporting similar girders above. Between these transverse girders and at right angles to them were cross girders, about eighteen inches'apart, and between these was placed the corrugated iron, upon which concrete was laid to a level. The right third of this floor, the center and more than half the left third, was finished and concreted as above, and Schwartz and his associates were engaged upon the left third, working from the center toward the rear. At the rear end of the center floor were three openings which were finished, so far as these men were concerned, being left for a stairway; the center opening was about 18 feet by 5, and had been covered with boards by some carpenters who had put in the sashes in the windows just above, but the two openings on each side of the center one, each about 2 feet by 4 or 44, were uncovered and entirely unprotected. The brother of the deceased kicked a lime barrel through one of these side openings and it fell to the bottom.
    It is a universal custom in the iron trade for such openings, when not being worked upon or used, to be covered up and kept covered.
    Plaintiff sought to prove this by competent evidence, and a half dozen good exceptions will be found at fols. 153-156.
    Romer admits that the opening through which Schwartz fell was uncovered all the time he was there, and that the center one was covered by some one else.
    Considerable contradictory testimony will be found in the case as to the number of anvils in use, their weight, location, and what they were placed upon, much of it being caused by the justice allowing defendants to go into their affirmative defense in the examination of plaintiff’s witnesses. Romer and Yanderbeck swear there were six anvils, three on each side of center floor at equal distances apart, placed on lime barrels; their weight, Romer says, 18 or 20 pounds, and Yanderbeck fifty pounds, but readily movable at the will of the workmen. There were six couples working and only four anvils. Schwartz was using the only anvil not in use; it was placed upon a lime barrel and was about three feet from the opening through which he fell. Romer had no personal knowledge about it, as he did not see Schwartz using the anvil that.morning. As against this testimony, we have the size of the anvil, two and one-half feet long, eight inches wide and four to five inches thick. It weighed 100 pounds, and was placed on the long transverse girder to give a firm support, with a block of wood beneath, being too heavy to place on a lime barrel, as the blows upon it would at once break the barrels to pieces. Deceased was engaged, with his back to the opening on the center floor, trimming a piece of corrugated iron, and when this fell he stepped back to avoid having it strike his feet, when he stumbled or tripped and fell backward through the opening. Beneath the opening, twenty-three feet down, was a brick foundation upon which he fell, crushing his skull and dying almost immediately. Romer gave no instructions where to place the anvil, nor what precautions to take to ensure safety, except to tell them to be careful and not fall. Even this precaution was not taken on the morning in question. Eomer testifies : “I came into the building and saw they were all at work there. I had no occasion to speak to him. I had no conversation with him.” Immediately after the accident the opening was covered over, but a conversation about this with Eomer that took place within half an hour was excluded.
    There is no evidence that Schwartz put the anvil where it was, but it seemed to be safe enough, for Vanderbeck, on the morning in question, was waiting to use it.
    There was evidence, however, that the hole was clearly apparent. It was in a well lighted part of the floor known to all the witnesses who were fellow workmen and examined on the part of the plaintiff, and its existence known as well to the intestate. Indeed, he was working so near it when he fell through it that he must have seen it when he approached the place where he was working. The judge presiding dismissed the complaint, expressing his views in a short opinion, thus:
    The Court.—There is no doubt about this question. There is absolutely no evidence that would justify a finding that the defendant was guilty of negligence, and from the evidence it is absolutely apparent that the injury was the result of the plaintiff’s own voluntary act; his own act in picking out this locality and working alongside of that hole. He had hundreds and hundreds of square feet about there where it was absolutely safe to do his work, and he deliberately chose, of his own volition, the only place on that floor that was unsafe. To make the defendant liable for an accident under those circumstances would, in my opinion, reverse qvery rule of law. If the jury should find a verdict for the plaintiff, I should set it aside. I think my duty would be to set it aside.

      Hector M. Hitchings, for app’lt; John Notman. for resp’ts.
   Brady, J.

Giving the plaintiff the benefit of all the propositions urged in his favor, namely, that the foreman put in charge of the men, including the plaintiff’s intestate, was incompetent; that the defendants were remiss and negligent in not covering the hole through which the intestate fell, and did not, therefore, discharge the duties they owed to the workmen, nevertheless the evidence shows conclusively not only that the intestate knew of the existence of the hole, but that in working near it he exposed himself to danger voluntarily, inasmuch as he was not obliged to do his work at that point, and apparently chose it because it was more convenient and involved less labor. And no case can be found in the books in which a workman, albeit unused to the employment he was engaged in, but with full knowledge of its dangerous features and surrounding elements, has recovered for injuries received from one of such dangers to which he voluntarily exposed himself. He is bound to protect himself by the use of his senses. The rule is well settled.

“ If the servant, before he enters the service, knows, or if he afterwardsdiscovers, or if, by the exercise of ordinary observation or reasonable skill or diligence in his department of service, he may discover that the building, premises, machine, appliance, or fellow servant in connection with which or with whom he is to labor, is unsafe or unfit in any particular, and if, notwithstanding such knowledge or means of knowledge, he voluntarily enters into or continues in the employment without objection or complaint', he is deemed to assume the risk of the danger thus known or discoverable and to waive any claim for damages against the master in case it shall result in injury to him.” Thompson on Negligence, 1008; Haskins v. N. Y. C. & H. R. R. R. Co., 65 Barb., 129; affirmed, 56 N. Y., 608; Jones v. Roach, 9 Jones & Sp., 248; Stoutenberg v. The Dunbar Box & Lumber Co., 13 W. Dig., 445; Appel v. The B., N. Y. & P. R. Co., 111 N. Y., 550; 20 N. Y. State Rep., 90; De Forest v. Jewett, 88 N. Y., 264.

•The court, in the last case cited, said: “We do not see how the defendant can be held liable in this case without abolishing the well established rule that the servant, by accepting the employment, assumes the risks and perils incident thereto so far as they are apparent and obvious.”

The judgment appealed from must, for these reasons, be affirmed, with costs.

Yan Brunt, P. J., and Daniels, J., concur.


text:
    Morris A. Brockman, Resp’t, v. Lewis Meyers, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

      1. Bill op sale—Consideration—Evidence.
    "Where, upon the sale of a business by plaintiff to defendant, a bill of sale was executed which stated the consideration to be the payment of the debts incurred by plaintiff in the business to date, Held, in an action for moneys loaned, where the rights of the parties depended largely upon this sale, that this covenant could not be attacked by parol evidence and that defendant could not thus show that the consideration, in fact, was a smaller sum than the debts.
    2. Account stated.
    An account stated does not result from a verbal interview between the parties and the statement of defendant to plaintiff that a certain amount was due the latter and the giving of a note to .him therefor, which was paid; at least this cannot result where the defendant’s version of the interview is disputed by plaintiff.
    Appeal from a judgment entered upon the verdict of a jury, and from an order denying a motion for a new trial.

      Horwitz & Hershfield, for app’lt; B. F. F/instein, for resp’t.
   Daniels, J.

This suit was brought to recover a balance of moneys alleged to have been loaned by the plaintiff to the defendant. And there was no substantial controversy as to the fact that the Joans as they were alleged had been made, except that from the last amount charged the defendant testified that $500 had been repaid to the plaintiff. This, however, was denied by him in the course of his evidence given upon the trial. It was admitted in the plaintiff’s bill of particulars that the Sum of $6,304.80'had been received by the plaintiff and was credited upon the loans, leaving a balance of $2,995.80 as the amount still remaining unpaid.

The defendant by way of defense alleged that he repaid the plaintiff all the moneys which had been borrowed from him. This repayment consisted in part of $5,200 paid by the defendant upon the indebtedness of the plaintiff arising in a cloak business carried on by him. This business was transferred by the plaintiff to the defendant. The latter testified that he had agreed to pay the former the sum of $2,500 for the stock in the business. And evidence was given by his son and his son-in-law tending to establish the correctness of this statement. But it was controverted on the part of the plaintiff, whose position was that the business had been transferred by him to the defendant upon the consideration that he should pay the indebtedness which had been created in the course of carrying it on, amounting to the sum of $5, 207.49. And the disposition of the action mainly depended upon which of these persons was correct in the statement made concerning the sale of the business. To corroborate the plaintiff the defendant was interrogated as to the fact of a bill of sale having been executed and delivered to him for the transfer of the business. A copy of what was asserted to be the bill of sale was produced and the defendant was interrogated concerning it, but did not concede that it was an accurate copy of the instrument which had been executed and delivered to him by the plaintiff. This copy was offered as evidence, but it was objected to on the part of the defendant, and verbal notice was thereupon given to the defendant, while he was upon the witness stand in the afternoon, requiring him to produce the original bill of sale. And later in the afternoon a written notice to the same effect was served upon his attorneys. He failed to produce the bill of sale before the court in the morning, when the case again proceeded, and the plaintiff offered the copy that was produced by him, and affirmed to be a true copy of the bill of sale, in evidence, and that was received by the court. It was objected on part of the defendant that the notice to produce the original bill of sale was insufficient to permit the copy to be received as evidence. But it did not appear that the defendant had 'made any effort whatever to obtain the bill of sale and produce it upon the trial, or that he could not do that. And as such an instrument had concededly been made to him, it is to be presumed that it was in his possession and might upon reasonable search for its discovery have been obtained and presented upon the trial. And that he failed to make that search is a circumstance tending to indicate his indisposition to comply with the notice, or to endeavor to obtain the original instrument, and certainly created the presumption that he may have been aware of the fact that a search for the bill of sale would have enabled him to present it at the trial. It was because he had failed to search for it, and upon the assumption that the verbal notice given to him was sufficient, that the court received the copy as evidence. And in this practice the ruling has the support of what was-said .in the decision of Hammond v. Hopping, 13 Wend., 505, and in Howell v. Huyck, 2 Abb. Ct. App. Dec., 423. These authorities distinctly sustain the action of the court in permitting the copy of the bill of sale to be read in evidence. By this copy it appeared that the substantial" consideration for the transfer of the stock to the" defendant was the agreement that he assumed and covenanted to pay all the debts and liabilities of the plaintiff, a complete list of which was annexed to the instrument, and they amounted to the sum of $5,207.49. This instrument the court held, in submitting the action to the jury, to be conclusive against the defendant that the consideration for which he purchased the plaintiff’s stock was not the sum of $2,500, but that it was the covenant on his part to pay the debts and liabilities which had been incurred by the plaintiff in the course of the business.

An exception was taken to this ruling or direction of the court in the submission of the case to the jury. And it is now insisted, inasmuch as evidence was taken during the progress of the trial tending to prove that the same was made for the consideration of $2,500, that the court should have submitted the inquiry to the jury whether this evidence should have been followed as the truthful exposition of the case, and as qualifying or overcoming the effect of the covenant contained in the bill of sale. But this instrument was not liable to be overcome in its effect by the oral proof that the stock was sold to the defendant for the price of $2,500, for the instrument itself contained a covenant directly in conflict with the proof

There was more than the acknowledgment of a consideration for the sale of the stock, which, if its recital stood alone, might be explained, for it was a direct and unequivocal covenant on the part of the defendant that he would pay the debts and liabilities of the plaintiff for the transfer of the stock of goods to him. And that covenant could not be avoided or annulled in its effect by mere oral evidence that the agreement for the sale of the stock had been made for a different consideration. And no principle was referred to, either in Woolsey v. Funke, 121 N. Y., 87; 30 N. Y. State Rep., 768, or in either of the other authorities which have been brought to the attention of the court, that would permit this covenant to be set aside by evidence of a preceding agreement of the character of that presented by way of defense. And as his evidence was not competent for the purpose of changing the obligation assumed by the defendant by means of this bill of sale, it was the duty of the court in submitting the case to the jury to direct them to reject the oral evidence given on the part of the defendant to establish the fact that the sale had been made for a different consideration. Hamilton v. N. Y. C. R. R. Co., 51 N. Y., 100.

An exception was also taken to the refusal of the court to direct a verdict for the defendant on the ground that an account had been stated between the parties on the 1st of August, 1887, which was followed by the delivery of the note of the defendant to the plaintiff for the sum of $454.80 and its subsequent payment. But this charge could not be justly given to the jury, for the reason that the statement made of the indebtedness and the manner of its adjustment depended wholly upon the testimony of the defendant, and what was to be the effect of that testimony was for the jury to decide. Beyond that, the statement of the defendant was inconsistent with the obligation created by the bill of sale for the payment of the debts of the business. In making it the sum of $5,200 was included as a charge against the plaintiff, when, in fact, it was money which had been paid by the defendant to satisfy the debts and liabilities of the business. The defendant also relied upon the payment to the plaintiff of the sum of $500, which the latter denied having received, and whether he had received it from the defendant or not was for the jury to determine. The statement relied upon was not the statement of an account between the parties, but it was a verbal interview between them, in which the defendant testified that he stated to the plaintiff what had been paid to him, which brought the account down to the sum of $454.80, for which he gave the note that was afterwards paid. This was entirely inconsistent with the testimony given by the plaintiff, as well as with the covenant contained in the bill of sale so far as it related to the moneys paid by the defendant for the extinguishment of the debts of the plaintiff. Upon this subject the charge of the court was really more favorable to the defendant than he was entitled to insist upon. And the same may be said with propriety as to each of the other exceptions taken by the defendant’s counsel to the charge, for neither the evidence of the witnesses nor the surrender of the notes, as that was stated and explained, nor both together, were conclusive in favor of the defendant.

Other exceptions were taken during the trial to rulings upon offers of evidence, but in no respect does any substantial error appear to have arisen in their disposition to the prejudice of the defendant.

The evidence was entirely sufficient to submit the questions in the case to the jury, and they found the plaintiff entitled to the balance claimed by him after deducting therefrom an item of $100. Both the order and the judgment should be-affirmed, with costs.

Van Brunt, P. J., and Brady, J., concur.


text:
    Frederick W. Blossom, Resp’t, v. Spencer P. Shotter, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    Sale—When title passes.
    Where anything remains to he done by a seller of merchandise to put the same in deliverable shape so that the purchaser has an option of refusal to accept in case such things are not done, no title passes; and the only exception to this rule is that where goods are sold by weight and measure the exact quantity may he ascertained in order to fix the price to he paid.
    Appeal from judgment entered upon verdict directed by the court and from order denying motion for new trial.

      James Byrne, for app’lt; James M. Gifford, for resp’t.
   Van Brunt, P. J.

This action was-brought to recover damages for the breach of an alleged contract for the sale of 1,500 barrels of rosin to be delivered free, on board the plaintiff’s vessel in the port of Savannah.

The contract was entered into by telegrams and correspondence; and the question presented is whether the contract of sale was executed or executory.

The first telegram bearing upon the question was sent by the plaintiff to the defendants at Savannah, and'is as follows :

“ S. P. Shotter & Co., Savannah. New York, Feb. 19th. Make lowest possible offer good two days 1,500 M. f. o. b. my vessel‘Savannah.’ Answer immediately. F. W. Blossom.”

The defendants answered by telegram as follows:

“ February 19, 1886. Savannah, Georgia. To F. W. Blossom, 140 Water street, New York, N. Y. Three ten f. o. b., here for ‘ reply to-morrow afternoon. S. P. Shotter & Co.”

On the same day the defendants wrote to the plaintiff stating as follows:

“Yours of the 17th instant received, also telegram of even date. To the latter we replied, offering 1,500 ‘ M.’ rosin, at $3.10, f. o. b., your vessel here, if reply by to-morrow evening. We make the tempting offer with a view to closing out all we have.”

On the 20th of February the plaintiff wrote to the defendants that their offer was not accepted. On the 23d the plaintiff telegraphed the defendants: “Your offer 1,500 ‘M.’accepted; telegraph confirmation immediately. ”

On the same day the defendants telegraphed to the plaintiff: “We confirm sale to you of 1,500 ‘M.’ at $3.10, f. o. b. Savannah.”

Upon the same day the plaintiff wrote to the defendants at Savannah the following letter:

New York, February 23, 1886.

Messrs. S. P. Shotter & Co., Savannah.-Ca.:

Dear Sirs—Your favor of the 19th instant to hand and noted. This morning the 1,500 “M." matter came up again, and, after much trouble, I succeeded in getting the bid for a few hours, and wired you, accepting the lot, etc., my telegram probably reaching you at same time as my letter of Saturday, 20th of - February. Later- in the day I received your reply confirming the sale, and the matter now is closed by the sale to me of 1,500 bbls. “ M.” rosin at $3.10, f. o. b., my vessel in Savannah, less 2$ per cent, sight draft against documents as shipped. The vessel will report at Savannah within the next thirty to forty days. She may turn up in ten days. I will give you five days’ notice. I have no doubt but that she will go direct to the wharf, so you will have very small expense putting on board. An inspector’s certificate, such as you give on foreign cargoes, will be necessary. Paterson came very near getting the order; he was but a cent or so above me.

I note your market has declined to $3.00 on “M,” $2.20 on “ K.” Will also need about 200 when is made.

Yours truly,

F. W. Blossom.

On the 25th of February the defendants wrote to the plaintiff a letter, of which the following is a portion:

Savannah, Feb. 25,1886.

F. W. Blossom, Esq., New York:

Dear Sir—Your favor of 23rd is at hand and we note what you say as to the time and manner of shipment of the 500 bbls. “M” sold by us on the 23rd inst. at 3.10 per 260 f. o. b. here. As no time was mentioned for shipment it was of course understood to be immediate and not future, so if we have to carry it for the buyer’s vessel, we will have to charge the actual expenses, i. e., storage, interest and insurance. Our object in making such a low price at the time was to make a quick turn, and we are much disappointed.

And said letter also contained objections upon the part of defendants to some of the terms made by the plaintiff in his letter of the 23rd.

Thereupon the plaintiff wrote a letter on the 27th of February, in which he claimed that the wording of his telegram indicated that the shipment was not prompt, and that his margin of 2i per cent would not admit of his paying any charges. The letter also contains a direction that they should forward to him the weights, invoices, certificates and shipping receipts to Bew York, attached to the draft; all the papers without exception to be in his name.

The letter also contained a provision that if plaintiff did not hear from defendant by wire on Monday, it would be understood that all the terms stated by him were agreed to.

On the 2d of March the defendant wrote to the plaintiff as follows :

“We did not wire yesterday, as we concluded to accept your stipulations, although we do not think the ground well taken. ‘ F. o. b. your vessel in Savannah ’ does mean prompt shipment, providing no future date is mentioned.’’

On the 4th of March the plaintiff wrote to the defendant as follows:

“Your favor of the 2nd inst. is to hand, and I note that the $1,500 bbls. M ’ order is accepted, and will be held awaiting the arrival of the vessel. This rosin must be every bbl. as originally sampled ‘ M ’ and deliver such lots as the local inspectors will be willing to give their certificates for as having originally graded ‘ M.’ If a small fee to them is necessary to obtain this paper, I will pay it.”

And on the sixth of March the defendants wrote to the plaintiff, “We will furnish an inspection certificate for the 1,500 barrels M ’ rosin.” On the fifth of April the plaintiff telegraphed to the defendants, “Where shall vessel call to receive 1,500 ‘M.’ Wire reply immediately.” On the next day the defendants telegraphed, “ Contract expired by limitation.” Bo vessel arrived at Savannah before the tenth of April, and the forty days from the twenty-third of February, the date of the plaintiff’s letter, expired on the fourth of April.

Upon this state of facts, rosin having risen, a verdict was directed in favor of the plaintiff, and from the judgment thereupon entered, and from order denying motion for a new trial, this appeal is taken.

There are two grounds upon which it is insisted by the appellant that there was no executed contract of sale. The first is that there was no specification or identification of any particular 1,500 barrels of “M ” rosin, and the second that it was not the intention of the parties that the title should pass.

It does not seem to us at all necessary to consider separately the first ground, because this appeal may be disposed of upon the second, which includes the first. And it seems to us that this is conclusively established, because there can be no question but that if the defendants tendered to the plaintiff 1,500 “ M ” rosin which they had bought the day after the contract had been made, it would have been a good tender. If this is true, then it could not have been the intention of the parties that there should be a present passing of the title at the time the contract was entered into.

It is said that this conclusion is at variance with the language used by the defendants in their letter of February 19, in which they say “ we make the tempting offer with the view of closing out all we have.” But this was no statement that they had 1500 barrels of rosin on hand, such as would fulfill the terms of the contract. They did not offer 1500 barrels to the plaintiff, but the plaintiff telegraphed to know what was the lowest possible offer of sale they would make for a given quantity of rosin, viz., 1500 barrels. It was the plaintiff that fixed the number of barrels that he desired to buy, and not the defendants the number of barrels they desired to sell.

If they had had but 1,000 barrels on hand the letter would have been entirely true, because they might very well, in order to fill the order, have intended to go into the market to procure the remainder. And their letter of the 25th is entirely consistent with the idea that they were not selling what they had on hand, but were going into the market to purchase, because they say in protest against being required to hold the rosin for thirty or forty days awaiting the arrival of the vessel: “ Our object in making-

such a low price at the time was to make a quick turn, and we are disappointed.” This language clearly implies the fact that they expected to go into the market to purchase some portion of this rosin, if not the whole, and the evidence shows that they had not on hand any 1500 barrels of rosin.

But the intention of the parties is further shown by their correspondence in respect to the expenses attending the holding of this merchandise. In the letter of the 25th, the defendants say “if we have to carry it for the buyer’s vessel we will have to charge the actual expenses, i. e.,.storage, interest and insurance.” In reply to this, the plaintiff says among other things: “My margin of 2£ per cent will not admit of my paying any charges.” ISTow if this property was to be the plaintiff’s at the time of the entering into this contract of sale, why should the defendants pay insurance, interest and storage?

If this rosin had been destroyed prior to the expiration of the forty days and the expiration of the contract,, and the defendants had attempted to hold the plaintiff for the purchase price of the rosin, it is clear that they could not have recovered under such a contract as this.

It is a familiar principle that if anything remains to be done by a seller of merchandise to put the same in a deliverable shape so that the purchaser has an option of refusal to accept in case such things are not done, no title passes. And the only exception to this rule is that where goods are sold by weight or measure" the exact quantity may be ascertained in order to fix the price to be paid.

In the case at bar certificates were provided for, and the plaintiff might refuse to accept the rosin if unaccompanied with these •certificates, and he himself stated that if the rosin was not so accompanied when tendered for delivery he would not have accepted the same.

Now if it was his property and he had bought it, and the title was his, why would he not take it ? He would not take it because the title was never in him, and because by the terms of the contract he had never accepted the property as a compliance with the contract and need not do so unless accompanied by these certificates;

It is argued that even if the contract should be considered as executory the defendant was not relieved from the obligation to deliver upon the ground that before the defendants could forfeit the rights of the plaintiff thereunder, the obligation rested upon them to give notice to plaintiff requiring performance, for some reasonable time, and that no such notice was ever given. And it is urged that the statement in the plaintiff’s letter of February ‘23d that the vessel would report at Savannah within the next thirty or forty days, and might in ten days, was not a condition precedent, but was made not prior but subsequent to the contract, and was a general statement for the information of the defendants. 'That this is not the case is clearly established by the evidence ; the defendants claiming that the telegram meant prompt delivery and that they were striving to obtain a contract for prompt delivery, and finally they receded from their proposition and accepted the condition that the vessel would report at Savannah within the next thirty or forty days, they to be at the expense of storage, etc., until the vessel had reported. It was clearly the intention of the parties in view of these explanations that this vessel should be there within the period named, and that was one of the conditions of the contract. And the defendants owed no obligation to the plaintiff except to.wait for the expiration of the time, and after the .time expired in which the plaintiff agreed to have his vessel there, they were absolved from completion of the •contract.

The claim that by the letter of the 4th of March in which the plaintiff stated I note that the 1,500 bbls. M ’ will be held ■awaiting the arrival of the vessel," in no way militates against this theory. He did not refer to the indefinite arrival of the vessel, hut to its arrival within the forty days, which was the utmost limit for which the plaintiff had asked the defendants to hold the-, rosin for the purpose of delivery.

It is urged that even if it should be held that time was of the essence of the contract, the forty days should be computed from the time the stipulations were all agreed to, and as the defendants wrote on the 2d of March, “ we have concluded to accept your stip ulations,” that the time was to run' from the 2d of March. This is not the contract. The plaintiff did not state that the vessel would report at Savannah within'thirty or forty days from the 2d of March, but stated that it would report within thirty or forty days from the 23d of February, because in his letter of that date he says, “ the vessel will report at Savannah within the next thirty or forty days.” How it is possible to import the 2d of March into-such a condition it is difficult to imagine. It is probably true that the contract was not finally terminated until the 2d of March, but part and parcel of the stipulations was the agreement upon the part of the plaintiff to have his vessel there within forty days-from the 23d of February.

We think, therefore, that upon the undisputed evidence the contract was an executory contract, and that the time for its completion on the part of. the plaintiff having arrived, and he not. having performed his part of the contract, the defendants were absolved from performing theirs, and no right of recovery existed in the plaintiff by reason of the non-delivery of this rosin.

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

Brady and Daniels, JJ., concur.