author: Osborne, J.

text:
    John Morton et al., App’lts, v. Owen O’Keefe et al., Impleaded, etc., Resp’ts.

      (Brooklyn City Court, General Term,

      Filed December 24, 1894.)

    Mechanic’s lien—Bond—Action on.
    A foreclosure of the lien and a recovery of a judgment against the property are necessary before resort can he had to the bond, given to discharge such lien.
    Appeal from an interlocutory j udgment, sustaining a demurrer to the complaint.

      J. C. & H. C. Smith & Koepke, for app’lts; Jas. P. Philip, for resp’ts.
   Osborne, J.

The complaint herein alleges the filing of a notice of mechanic’s lien by plaintiffs against the defendant Tucker, a owner of certain property ; that the defendant Tucker executed a certain bond, “with the defendants O’Keefe and O’Hara as sureties, * * * conditioned for the payment of any judgment which might be rendered against the said property in any action brought by these plaintiffs; ’’ that the sureties justified, the bond was approved, and an order was made discharging the said lien. Plaintiffs seek in this action to recover the amount of said lien against the owner- and sureties. There is no allegation that plaintiffs had ever instituted any action against the defendant Tucker for the foreclosure of said lien, or that any judgment had been recovered against her or her property. Defendants O’Keefe and O’Hara demurred, on the ground that the complaint, on its face, did not state facts sufficient to constitute a cause of action against them. The demurrer was sustained, and plaintiffs appeal from the interlocutory judgment entered thereon.

It will thus be seen that the naked question presented on this-appeal is as to the right of the plaintiffs to maintain this action in the first instance, against both the owner and her sureties, to recover the amount for which the notice of lien was filed. We are of the opinion that this action cannot now be maintained in its present form. We -cannot see how the position of the demurring defendants differs from that of sureties generally, nor is there anything in the mechanic’s lien law which places them on any other footing. They did not undertake, by the terms of the bond, to pay what the owner might owe the plaintiffs, because they had furnished materials to her, but only to pay judgment which might be recovered against her property ; and the obtaining of such a judgment depended on whether the plaintiffs had so far complied with the terms of the mechanic’s lien law as to entitle them to recover a judgment against the property of the owner. Sureties are not liable, as a general rule, until a breach of the condition of the bond executed by them. No breach is alleged in the complaint, and, until such a breach is shown, no cause of action exists against the sureties.

The learned counsel for the appellants contends that, as the effect of giving a bond is to discharge the property from the lien, no judgment can be rendered against the property, and that the sureties stand in the -place of the property, and that plaintiffs’ remedy is shifted from the land to the sureties. We do not think that this position can be maintained. It is quite true that, under the language of the mechanic’s lien law, a literal reading of the provision respecting the discharge of a lien by giving a bond might-seem to involve a contradiction; yet we think that a reasonable construction of the statute will easily obviate any such difficulty, and at the same time limit the liability of the sureties to just what-they contracted to be liable for. We think that the plain meaning of the condition of the bond is as if it read conditioned for the payment of any judgment recovered by the lienor in an action in which judgment might have been recovered against the property if no bond had been filed.” If we adopt this as the true construction of the statute, all the rights of the lienor will be preserved, and the obligations of the sureties will be no greater than they assumed. Copley v. Hay, 34 St. Rep. 771; Lawson v. Reilly, 13 Civ. Proc. R. 291 ; Scherrer v. Hopper, 45 St. Rep. 638; Brandt v. Radley, 23 N. Y. Supp. 277; Heinlein v. Murphy, 22 N. Y. Supp. 713; Kruger v. Braender, 3 Misc. Rep. 275; 51 St. Rep. 906; Cunningham v. Doyle, 5 Misc. Rep. 219; 54 St. Rep. 784. All of the above cited cases, except those of Copley v. Hay and Brandt v. Radley, without actually deciding the question now before us, inferentially support our view of it. In Brandt v. Radley the precise question came before tile court on demurrer, as in this case; and Mr. Justice Patterson, in an exhaustive and well considered opinion, held that the liability of sureties on the bond cannot be enforced until it is determined, in an independent action, that the lienor who asserts his claim against the bond had a lien which, but for the giving of the bond, he could have asserted against the property. In Sheffield v. Early, 57 St. Rep. 146 ; 25 N. Y. Supp. 1098, the general term of the first department held that a foreclosure of the lien and a recovery of a judgment against, the property was necessary before resort could 'be had to the bond. The case of Copley v. Hay, supra, is relied on by the learned counsel for the appellants as supporting his views. In that case an action was commenced to foreclose a mechanic’s lien, to which the-owner was made a party, and demurred on the ground that a bond had been given to discharge the lien ; but as it appeared that the bond had not been approved, nor any order made discharging the lien, the demurrer was overruled. What was said in. the opinion from which it might be inferred than an action would lie on the-bond was plainly obiter, and is in conflict with the other and lateidecisions above cited. Bulkley v. Moses, 23 N. Y. Supp. 125, is based upon Copley v. Hay, and both of these cases are overruled by Sheffield v. Early, supra. We are accordingly of the opinion that the interlocutory judgment sustaining the demurrer should be affirmed, with costs, with the usual leave to amend.


source: Caselaw Access Project

author: Titus, C. J.

license: Public Domain

text:
    Christ Hager, Resp’t, v. Buffalo Savings Bank, App’lt.

      (Buffalo Superior Court, General Term,

      Filed December 10, 1894.)

    Appeal—Question op pact.
    Where there is evidence from which the court below could find that the savings bank did not use reasonable precaution in determining the identity of the person, to whom the money was paid, before paying it, its decision, on that question will not be disturbed on appeal.
    Appeal from a judgment in favor of plaintiff.

      Adolph Rebadow, for app’lt; Matt Endres, for resp’t.
   Titus, C. J.

This is an appeal from a judgment of the municipal court in favor of the plaintiff for $100 and interest. The' plaintiff was a depositor in the bank of the defendant. His bank book was stolen, and the thief presented the book to the bank,, made out and signed the plaintiff’s name to a check, and demanded the money, which the defendant’s teller paid. We think that on the record this case should be affirmed. The only question in the-case was the negligence of the defendant in paying the check. An inspection of the signature to the check in comparison with the genuine signature of the plaintiff which the defendant had in its signature book was enough to put the defendant on its guard. It does not require the skill of an expert to satisfy the ordinary mind that the signature to the check was not genuine. The cashier of the defendant was so much in doubt about the ness of the signature that he at first took the check, and compared the signature to it with the signature of the plaintiff in the book, and then, being still in doubt as to its genuineness, required the party presenting the check to indorse the plaintiff’s name on the back of it, and then paid it. After having his attention directed to the dissimilarity of the genuine and forged signatures, and his suspicion aroused, he should háve taken steps to satisfy himself of the identity of the person presenting it. The plaintiff lived.in the city, and it would have caused but little delay to require the party presenting the check to produce some evidence or some person who could identify him. The case presented a simple question of fact, and we think there was evidence from which the court below could find that the defendant did not use reasonable precaution in determining the identity of the person to whom the money was paid before paying it, and we do not think the decision of the court on that question should be disturbed on this appeal.

The judgment should therefore be affirmed, with costs.

All concur.


author: White, J.

text:
    Anthony Bulena et al., Resp’ts, v. Henry Newman, App’lt.

      (Buffalo Superior Court, General Term,

      Filed December 10, 1894.)

    Labels—Counterfeit.
    Knowledge or intent is not an ingredient of the offence, created by chap. 219 of 1893.
    Appeal from a judgment in favor of plaintiffs.

      Mr. Sawyer, for app’lt; Frederick Haller, for resp’ts.
   White, J.

385 of the Laws of 1889 provides that every or a intended to designate the product of the labor of its members shall, in order to obtain the benefits of that act, file duplicate copies of such labels in the office of the secretary of state of this state, and that any such union or'association adopting such label may proceed, by suit in any court of record of the state, to enjoin the manufacture, use, display or sale of counterfeits or colorable imitations of such label, or of goods bearing the same; and that the complainant in such a suit may recover damages and profits from the offender. The act also prohibits and provides for enjoining the unauthorized use or display of genuine labels. Chapter 219 of the Laws of 1893 makes it a penal offense for any person to manufacture, use, display, or keep for sale any counterfeit or colorable imitation of any such label, and authorizes the recovery of a penalty of $200 by any person aggrieved. The plaintiff’s are members of the Cigar Makers’ Union No. 2 of Buffalo, N. Y, which is a local or branch union of the Cigar Makers’ International Union of America, which is an association or union of workingmen, within the meaning of the statutes above mentioned, the members of which are engaged in the business of making cigars. The International Union was located at -Chicago, in the state of Illinois, with more than 3,000 local or branch unions in different places in the United States, including •one or more in the state of Pennsylvania. The International Union had filed duplicate copies of a label in the office of the secretary of state of this state, intended to designate the product ■of the labor of its members pursuant to the act of 1889. On July 24, 1893, the defendant was, and for many years had been, a wholesale dealer in tobacco and cigars at Buffalo, and on that day he sold to the plaintiff, Bulena, a box of cigars bearing a counterfeit or colorable imitation of the label so as aforesaid filed by the International Union. The defendant purchased said box of cigars, together with a large number of other boxes of cigars of the same brand, from a manufacturer in Pennsylvania, every box of which bore the same spurious label. At all times, until after the sale to Bulena, the defendant believed said labels to be genuine.

It is strenuously urged by the appellant that the evidence does not justify the finding by the trial court that the label on the box of cigars sold to Bulena is spurious, but we the think it does. The two labels were examined by the court below, and its conclusion as to the character of the one in question seems to be based upon sufficient evidence. The purpose of the label upon the box of cigars was to represent that the cigars within the box were made by union men. It was affixed to the box of cigars as a means of certifying to that fact, and, whatever the fact may have been, the evidence of it was a counterfeit or colorable imitation of the label adopted by the union, and that was the use of a spurious label, within the meaning of the statute. The counterfeit label was neither manufactured, displayed, nor sold by the defendant, but it was clearly used for the purpose of designating the cigars within the box as the product of the labor of members of the union, and that was a violation of the law. If the defendant himself had affixed the spurious label to the box of cigars, its character and efficacy as evidence or as the representation of a fact would have been precisely what it was when affixed by the defendant’s vendor.

The defendant had no knowledge that the label on the box of cigars sold to Bulena was counterfeit; in truth, he believed it to be genuine; and it is urged that for that reason this action is not maintainable. The action is brought upon the theory, and the complaint alleges, that the defendant did know the real character of the label used, and that in using it he intended to injure the plaintiffs, and no evidence whatever was given by the plaintiffs in support of those allegations. The appellant, therefore, very plausibly insists that no recovery can be justified, and cites the case of Verona Central Cheese Co. v. Murtaugh, 50 N. Y. 314; Low v. Hall, 47 N. Y. 104, and Blatz v. Rohrbach, 116 N. Y. 450; 27 St. Bep. 484, and others, as authorities for its contention. As he contends, it is well settled that a penal or punitive statute cannot be extended by implication so as to embrace cases not within its terms, even though they be within the mischief sought to be prevented. But all these authorities relate to statutes which"make knowledge or an intent to injure or defraud an ingredient in the |offense prohibited. But another line of decisions, equally con- \ trolling, clearly establishes as the law of this state that, when a penal statute does not make such knowledge or intent an ingredient in the offense prohibited, it is not necessary to allege or prove it in an action to recover the penalty for a violation of the statute,, nor, in fact, in a criminal prosecution by indictment. People v. Kibler, 106 H. Y. 321; 8 St. Rep. 707; People v. West, 106 H. Y. 293 ; 8 St. Rep. 713. The allegations of knowledge and intent to injure contained in the complaint should be treated as surplusage. Purchase v. Matteson, 6 Duer, 587; Quintará v. Newton, 5 Rob. (H. Y.) 72; Dickinson v. Devlin, 46 H. Y. Supr. Ct. 232.

The judgment appealed from should be affirmed, with costs.


author: White,

text:
    American Preservers’ Company, Resp’t, v. Frank J. Wiltsie,. App’lt.

      (Buffalo Superior Court, General Term:,

      Filed December 10, 1894.)

    Money had and received—When lies.
    An action for money had and received, in the absence of fraud, can be maintained only where the party, who it is alleged had or received the plaintiff's money, took and received it under some arrangement with somebody, whereby he either gave or received some benefit or advantage from the transaction in which he received it.
    Appeal from a judgment in favor of plaintiff.

      C. S. Crosser, for app’lt; Simon Fleischmann, for resp’t.
   White,

fact of this case, so far as they are essential to a proper disposition of this appeal, are substantially as follows : The plaintiff was a West Virginia corporation engaged in the business of manufacturing and selling fruit preserves, with a branch establishment in this city, of which one Charles F. Tomes was the manager, and he was the only representative of the plaintiff in this state. The plaintiff kept its account at the Manufacturers’ & Traders’ Bank, in this city, and such account was in the name “American Preservers’ Company, Charles F. Tomes, Manager,” and all checks upon its bank account were signed with that name by Tomes. Tomes had in fact no authority to transact any business in the name of the plaintiff, except such as pertained to its said business. On January 12, 1892, Tomes drew, in plaintiff’s, name, a check upon the Manufacturers’ & Traders’ Bank, payable to his own order, for $30, and indorsed it. He thereupon delivered the check to the defendant for the sole purpose of enabling the defendant to get the amount of the check in currency from one Millring for the benefit and accommodation of Tomes. The defendant indorsed his name on the back of the check, below that of Tomes, and delivered it to Millring. Millring handed the amount of the check, in currency, to the defendant, and the defendant forthwith handed the identical currency to Tonies. On March 21, 1892, Tomes drew in plaintiff’s name another check on the Manufacturers’ & Traders’ Bank, payable to the order of the defendant, for $30, and delivered it to the defendant, for the sole purpose of enabling the defendant to get the amount of the check from one Levyn for the benefit and accommodation of Tomes. The defendant indorsed this check, and delivered it to Levyn, got its amount in currency, and forthwith handed the identical currency to Tomes. In each instance the scope of the transaction was, and was intended by Tomes and the defendant to be, the getting of the currency by Tomes for the check. Ho advantage or benefit was, or was intended to be, gained by the defendant. The checks were paid in due course of business by the bank. The complaint in this action alleges that at the dates of. those two checks, respectively, Tomes became indebted to the defendant upon his own account, and for his own use and benefit, individually and personally for goods sold to him by the defendant, or for services performed for him by said defendant, in the sum of $60, and in payment of said individual indebtedness Tomes made and delivered said 'checks to the defendant ; that the checks were deposited by the defendant to his own credit, and were paid to him; that he (the defendant) received the proceeds of the checks in payment of an individual indebtedness from Tomes to him.

There is no necessity for an extended argument to establish the proposition that the use by an agent of his principal’s money to pay an individual debt, without the consent of the principal, is illegal, and may be recovered from the person receiving the moneys with notice that they belong to the principal. That principle of law, however, has no application to the case in hand, because it is shown affirmatively and conclusively by the record that Tomes, the plaintiff’s agent, was never indebted to the defendant, and that the defendant did not receive the checks in payment of any indebtedness from Tomes; that in fact the defendant never had a penny’s interest in the checks or their proceeds ; that solely for the accommodation of Tomes he procured third parties to take the checks in exchange for currency. The cause of action set forth in the complaint, therefore, proves to be without any foundation in fact. The contention of the respondent is that the transaction between Tomes and the defendant was, in the eye of the law, a loan by the defendant to Tomes, and the payment of that loan by Tomes with the plaintiff’s money. I have yet to learn that such transaction can have such an effect as is claimed by the plaintiff. Ho such claim can be justified by the evidence. According to the evidence, the defendant received the money, as the money of Tomes, from the person who exchanged currency for the checks to accommodate Tomes. Ho claim can be justified by the evidence that any agreement for a loan of money was ever made or thought of by either Tomes or the defendant, and an action for money had and received, in the absence of fraud, can only be maintained where the party whom it is alleged had or received the plaintiff’s money took and received it under some arrangement with somebody whereby he either gave or received some benefit or advantage from the transaction in which he received it. Ho such element exists in this case. The only liability incurred by the defendant was to the persons who exchanged the currency for the checks, and that liability was by reason of his indorsement upon the check, and only contingent. I have not been able to find any authority holding that such a transaction as that between Tomes and the defendant constituted a loan of money by the defendant to Tomes, or the payment of a debt by Tomes to the defendant. The plaintiff’s claim to recover is based upon the assumption that it was a loan. If that assumption is not well founded,—and I think it is not,—his claim must fail. A loan of money involves necessarily a contract whereby the lender delivers money to the borrower upon an agreement, express or implied, on the part of the borrower, that he will repay the money to the lender. It also necessarily involves the exercise of dominion over and ownership of the money loaned by the borrower after the money is delivered to him by the lender. None of these essential elements are found in the transaction between Tomes and the defendant. These views necessitate a reversal of the judgment appealed from.

I will not be necessary, nor will it be profitable, to consider the power of the court below to direct a verdict as it did in this case, because since the action was tried the legislature has given it such power, and the question is not likely to arise again. Chapter 691, § 3, Laws 1894 _


author: Titus, C.

text:
    Corrine Sinnette, App’lt, v. Henry C. Hoddick et al., Resp’ts.

      (Buffalo Superior Court, General Term,

      Filed December 10, 1894.)

    Damages—Conversion.
    In an action against a broker for the conversion of goods, ordered to be sold at not less than a certain price, the owner can recover only the actual value.
    Appeal from a judgment in favor of plaintiff.

      Clinton & Clark, for app’lt; M L. Jellinek, for resp’t.
   Titus, C.

is an appeal from a judgment rendered by one of the judges of the municipal court, without a jury, favor of the plaintiff and appellant for $10 damages and costs. The defendants are dealers in pictures, paintings, and engravings. By the complaint it is claimed that on the 8th day of November, 1892, the plaintiff being an artist, left an oil painting with the defendants for sale, under a contract, of which the defendants claim the following is a correct copy: “ I hereby agree to leave with Hoddick & Company the paintings Charlotta Corda and Little Pilgrim. The painting Charlotta Corda to be sold for $300. The painting the Roman Pilgrim to be sold for forty dollars. Their commission to be ten per cent. These pictures at my risk.”

This contract was signed by the plaintiff, and left with the defendants, with the pictures therein described. The defendants have no recollection of having sold the painting called the Roman Pilgrim,” or “ Little Pilgrim,” and on the demand for the painting or the price for which it was to be sold cannot return the painting, not having it, or knowing what has become of it, and refuse to pay for it. Two points are raised by the plaintiff on this appeal: First, that the plaintiff is at least entitled to recover the sum mentioned in the contract, $40, as the price under which it should not be sold; and, second, that there is no evidence warranting the-court below in giving a judgment for $10. On the first proposilion the plaintiff invokes the rule that where articles have no settled or fixed market value, such as paintings, statues, and vases, and the factor refuses to return them, he is liable for at least the minimum price fixed in the contract with the agent. In Blot v. Boiceau, 3 N. Y. 78, the plaintiff consigned to the defendant, in New York, a quantity of wine, to be sold on commission, at a minimum price fixed in the letter of instructions. The defendant;, on receipt of the goods, made advances to the plaintiff, and afterwards sold the goods at public auction to repay his advances, obtaining therefor less than the price mentioned in the letter of instructions. The court held that the defendant was bound by the instructions of his principal, and could not sell for less than the price fixed by the principal, and was liable for the damages consequent upon the sale without authority, and that the price in the invoice ought to be regarded as the value of the goods, if no other evidence of their value had been offered, citing Stevens v. Low, 2 Hill, 132: but that, when the goods have a market value, the party is only liable for such market value. Judge Bronson, in his opinion, adding that “when the consignment is of articles which have no market value,—such, for example, as antique paintings, statues, or vases,—the rule which has been mentioned will not apply.” In Hinde v. Smith, 6 Lans. 464, the plaintiff consigned whisky to the defendant, in New York city, to sell at one dollar a gallon, and the defendant sold it for seventy cents a gallon. The court say the defendant was liable for selling contrary to his instructions, but that the measure of damages was the actual market value in New York, but that a different rule obtained in case of articles which have no fixed or known market value. In Guy v. Oakley, 13 Johns. 333, it was held that, where the principal limited his agent as to price, he had no right to sell under it; if he did, he would be liable. The same rule was stated in La Farge v. Kneeland, 7 Cow. 456. It is a general rule that an agent must obey the instructions of his principal, or he will be liable for the damage sustained by the principal. Johnson v. N. Y. C. R. R. Co., 33 N._ Y. 610; Loeb v. Heilman, 83 id. 601; Comley v. Dazian, 114 N. Y. 161; 22 St. Hep. 813. In Stevens v. Low, 2 Hill, 132, the defendant sold certain mattresses to the plaintiff, at an agreed price, payable in certain indorsed notes, delivered to the plaintiff conditionally,—that is, after going to and returning from Boston he was to deliver the notes or return the goods to the defendant in error. On his return Low demanded the goods or the notes, which Stevens refused to deliver. The court, by Justice Cowen, say : “Had the plaintiff below brought assumpsit, he would have been entitled to the agreed price, subject to a deduction should it turn out in proof that the notes were of less value. * * * The plaintiff below, however, disaffirmed the contract of sale, and treated the defendant as having wrongfully converted the goods to his own use. The action was trover, which goes to the actual value of the goods, with interest. * * * The agreement of parties on the price would be high evidence of value, but there is no rule which would estop the defendant from showing the truth.”

It would seem, from these authorities that the agent must obey the instructions o£ his principal in selling articles consigned to him; that, in case such articles have no market value, the agent is only liable in assumpsit for their actual value. In the absence of proof, the agreement of the parties fixing the price at which the articles may be sold will be assumed as the market value, but it is open to proof like any other question. When the articles have, no fixed or market value, such as paintings, statues, and so forth, the agent is concluded by the agreed price; but if the principal elects to waive or disclaim the contract, and sues for a conversion of the property by the agent, the principal can only recover the actual value of the property. The present action is for the wrongful conversion of the painting by the defendants, and it follows that he can only recover in such an action the actual damage which he has sustained; and that question, like any other fact, must be determined from the evidence on the trial. I do not think that the judgment, however, is sustained by the evidence in the case, and, as I view it, there is no evidence from which the court below could legally conclude that the painting was worth but $10. The agreement of the parties is in evidence, wherein the price of the painting is fixed at $40, which is “ high evidence ” of its value. Stevens v. Low, supra. The plaintiff testifies.that the painting was worth $100; and Cecelia M. Sinnett, another witness, on her cross-examination, states that the picture was worth more than $10 or $20, and she seems to have some knowledge of the value of this particular painting. The only testimony of the value of the picture given on behalf of the defendant is by the defendant Frederick Hoddick himself, when he says the picture would sell for $10. This, taken in connection with his former statement that he hardly knew how to answer the question as to what the value of the picture was, seems to me to furnish no proof of value. If it would sell for $10, it is no evidence that it would not sell for more than $10. He says the frame would be worth $2.50, and he does not include the frame in his figure of $10, for what he claims the picture would sell. Besides, the defendants, in their answer, allege the plaintiff’s loss sustained was not more than $20, but on the trial, after the proof was in, the defendants amended their answer so as to allege that the loss sustained by the plaintiff was not more than $10. This may not be any evidence of. the value of the painting, but it is material in explanation of what the defendant meant when he said he would sell for $10, leaving the fair inference that he did not intend to fix that sum as the value of the picture. I think, for the reason that there is a want of evidence to sustain the judgment of $10, the judgment below should be reversed, with costs.


text:
    Mathias T. Coleman et al., Resp’ts, v. Charles Rung et al., App’lts.

      (Buffalo Superior Court, General Term,

      Filed December 10, 1894.)

    Evidence—Parol.
    Parol evidence is not admissible to change or vary a written contract.
    Appeal from a judgment in favor of plaintiffs.

      E. C. Robbins, for app’lts; Hodson & Webster, for resp’ts.
   Titus, C. J.

This is an appeal from a judgment of the municipal court. are partners, engaged in the manufacture and sale of furniture, and have their principal place of business on Broadway, in this city, under the name of Rung Bros. The plaintiffs, under the name of the Interstate Publishing Company, are publishers of an advertising book called "Buffalo of ToDay.” On the 9th day of February, 1893, at the solicitation of the plaintiffs’ agent, the defendants signed the following agreement, and delivered the same to the plaintiffs’ agent:

“ Buffalo, N. Y., Feb. 9, 1893.
“ To the Interstate Publishing Company:
“You are hereby authorized to deliver fifty copies of ‘ Buffalo of To-Day, the Queen City of the Lakes,’ bound in illuminated pamphlet covers, for which we will pay you or order the sum of thirty-seven and fifty one-hundredths dollars upon delivery of same; an editorial review of our business to appear in the publication, and cut.
“Rung Brothers.”

Subsequently the plaintiffs caused to be delivered to the defendants’ place of business fifty copies of the work, corresponding in all respects with the terms of the above order, containing an editorial review of the defendants’ business, and of the number of houses in this city at which their business is carried on, and a half-page cut of their principal house on Broadway, and demanded pay for them. The defendants refused to receive the books, or to pay for them. On the trial of the action the plaintiffs proved the making of the agreement by the defendants, the delivery of the books, and the demand of payment, and rested their case. The defendants then offered to show that at the time of signing the order for the books the agent taking the order agreed that an entire page of the work should be devoted to the defendants’ business, together with a cut of their three stores, and an editorial notice of their business, and that such notice and review and the cut should be submitted to them for approval, all of which they failed to do. In reference to their failure to submit the review and cut to the defendants for approval, if the view I have taken of the main question submitted is correct, the testimony would become immaterial, for, if the defendants are precluded from giving oral testimony of what they claim occurred at the time of • signing the order, then that portion of their offer would be of no importance. The offer made by the defendants was ruled out by the court below, and a judgment rendered in favor of the plaintiffs for the amount of the contract price. This presents the only question in the case: Was it competent to receive paroi evidence of what transpired at the time of signing the contract by the defendants for the purpose of showing that a different contract was made ? It is a familiar rule of law that paroi evidence is not admissible to change or vary a written contract, and that, where a contract is reduced to writing, pursuant to an oral agreement, the presumption is that the written agreement embodies the contract of the parties,- and I think it cannot be disputed that the written order for the books amounted to a contract binding on both parties. Butterfield v. Spencer, 1 Bosw. 1; Beardsley v. Davis, 52. Barb. 159. No fraud or mistake is alleged by the defendants in their answer, and no offer was made on the trial to show that any fraud was practiced upon the defendants to induce them to enter into the agreement. The rule that oral stipulations between parties, made at the time of the execution of the written contract, are deemed merged in it, and that parol evidence will not be received to vary its terms, is so well recognized that a reference to a few authorities will be sufficient on that point. Niles v. Culver, 8-Barb. 205; Wilson v. Deen, 74 N. Y. 531; Colwell v. Lawrence, 38 id. 71; Bopp v. Askins, 31 St. Rep. 555; 10 N. Y. Supp. 539-The defendants insist that the testimony offered was competent, and the court erred in excluding it. The authorities cited by the counsel for.;the defendants do'not question the rule above stated where the contract is complete, and shows that the undertaking of the parties is fully set out. In Routledge v. Worthington Co., 119 N. Y. 592; 30 St. Rep. 195, the defendant’s undertaking was shown in the writing, but the plaintiff’s lay wholly in parol. It was held that there was no contract set out between the parties, and it was competent to show what the plaintiff’s undertaking was. It was also held that the contract proposed to be shown was-a separate and distinct undertaking by the plaintiff. So in Brigg v. Hilton, 99 N. Y. 517, which-was an order for goods, the court held that the order was not a contract, but a mere memorandum to show what had been ordered, and that it was competent to show by paroi the quality of the goods ordered, and that a contract of warranty was entered into by the plaintiff. In Chapin v. Dobson, 78 N. Y. 74, the contract was for certain machines at an agreed price, and it was held that, the plaintiff’s part of the agreement, which was not in the written undertaking, might be proved by parol. And so in the other cases cited by the defendants’ counsel, they all recognize the rule that when the contract is a. complete undertaking, in the absence of fraud or mistake, parol proof is not admissible to vary the terms of it; but where, from an inspection of the undertaking, it appears that the whole contract has not been reduced to writing, or that there was á mistake, or one of the parties to it was guilty of fraud, then it is competent to show by paroi what the exact contract was. In the case under consideration the contract provided for an editorial review of the defendants’ business in the publication, and a cut of the defendants’ place of business, which is, in substance, all of the contract. The defendants claim that more spáce should have been given to the editorial review, and that more than one cut should have been in the publication. The contract calls for a cut of the defendant’s place a£ business. They offer to show that they were to have three cuts instead of one, the effect of which is clearly to-change the terms of the written agreement. If the doctrine that paroi evidence cannot be given to vary a written agreement is to obtain as the law upon that subject, it is difficult to see how, under the facts of this case, the defendants should have been allowed to make the proof which they offered. It has always been held that a party must protect himself by seeing to it that such details as he may think material to that end should find place in the writing which embraces the undertaking of the parties.

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

White, J., concurs.


author: Finch, J.

text:
    In the Matter of the Application of The Board of Public Works of the City of Watertown to Take Lands for the Extension of City Street.

      (Court of Appeals,

      Filed January 15, 1895.)

    1. Municipal corporations—Streets.
    By chapter 180 of 1891, all the powers, conferred upon the common council by the city charter, in relation to the opening of new streets, were transferred to, and conferred upon, the board of public works in the city of Watertown.
    2. Same.
    Proceedings for the opening of new streets are properly instituted by such board, instead of by the common council.
    3. Same.
    An order of the court, confirming the report of commissioners in such proceedings, is final and conclusive, and shuts out all objections save those involving the qustion of jurisdiction.
    Appeal from order of the general term of the supreme court in the fourth judicial department, which affirmed an order of special term confirming the report of commissioners appointed upon the' application of the board of public works of the city of Watertown to assess and ascertain damages for extending and opening Olay street in said city, and also from an order of the county court of Jefferson county appointing such commissioners.

      E. C. Emerson, for app’lt; Watson M. Rogers, for resp’t.

       Affirming, 51 St. Rep. 531.

   Finch, J.

this order was void for want of jurisdiccourt to grant principal question argued by the appellants. The charter of the city of Watertown, as amended (Laws of 1886, chap. 162), provides, among other things, for the opening of new streets and the taking of lands for the same, and vests authority and power for that purpose in the common council. (§§ 7 and 8.) Upon the application of that body commissioners are appointed to take the necessary lands and assess the damages, whose report, after confirmation by the special term, is made final and conclusive. If this had been a proceeding under the statute referred to by the common council to open the new streets we should regard the order of the commissioners which has been confirmed as beyond our review upon a direct appeal therefrom. In re Prospect Park & Coney I. R. R. 85 N. Y. 489 ; In re Southern Boulevard R. R. Co., 141 id. 532; 51 St. Rep. 818. But the proceeding originated, not from the action of the common council or the exercise of their authority. They were superseded, to some extent at least, by the board of public works created by new and later legislation. (Laws of 1891, chap. 180.) That board instituted this proceeding and has conducted it upon the assumption that all the powers and all the regulations of the charter relative to the opening of new streets were duly and completely transferred to it. If that be true, then it may avail itself of all the provisions of § 7, among which is the enactment making the confirmed order of the commissioners final. But the claim here is that none of those provisions regulating procedure and adjudging its finality apply at all to the board of public works so far as opening new streets is concerned, and that to rest upon the statutory conclusiveness of the order begs the very question raised. I am not altogether sure that the claim is well founded, but, admitting its force for present purposes, it will still follow that the order was valid, because the provisions of the charter do apply to the board of public works in opening as well as improving streets.

The necessary power was conferred upon the common council by language often used for that purpose. To such body was given the authority of commissioners of highways of towns, “with the exceptions and modifications ” thereinafter prescribed. One of those modifications was a distinct enlargement of the authority conferred by including within it power to lay out and open streets. The common council were made town commissioners, but with an enlarged authority. The act of 1891 (§ 9), organizing the board of public works, prescribes that the board “ shall have all the .powers and discharge all the duties of commissioners of highways of towns as given by and with the exceptions and modifications ” contained in the amended charter. The effect is that the enlarged authority of the common council is, by the same description and an identical phraseology, transferred to and conferred upon the board of public works. The intention to make such a substitution as to the general control of city streets is manifest from the single exception stated, by way of precaution, that the broad terms of the transfer should not divest the common council of its authority to dictate the conditions upon which railroads should be permitted to pass through the city streets. It further appears in the clause which gives to the board exclusive control of the construction, improvement, repair and cleaning of streets. Construction is a broad term authorizing the making of new streets; improvement permits new work upon streets already constructed ; and repair relates to the restoration of an existing condition. The four terms used cover the whole subject, from the making of the new street to its final and ordinary maintenance. The general scope of the act is entirely consistent with the view that the whole authority over the construction and care of streets given to the common council was intended to be transferred to the board of public works. It follows that the order was valid, and there was jurisdiction to grant it. The provisions of § 7, which make the confirmation final and conclusive, are, therefore, applicable so far as to shut out the further objections which do not involve the question of jurisdiction. ' ,

The order should be affirmed, with costs.

All concur, except O’Brien" and Haight, JJ., not sitting.

• Order affirmed.


author: Bartlett, J.

text:
    The Port Richmond and Prohibition Park Electric Railroad Company, App’lt, v. The Staten Island Rapid Transit Railroad Company, Resp’t.

      (Court of Appeals,

      Filed January 15, 1895.)

    Railroads—Crossings.
    The plaintiff was held to have failed to establish that, either by agreement between the parties or by authority of law, it is entitled to cross the defendant’s tracks at grade and compel the removal of the obstructive gate chain; also, it was held that its lessor, who had a right simply to operate a street surface railroad, if any, could confer no greater right upon plaintiff; and that its use of the crossing, by defendant’s permission, for four months had not ripened into a right.
    Appeal from judgment of the general term of the supreme court in the second judicial department, entered upon an order, which affirmed a judgment in favor of defendant, entered upon an order dismissing the complaint on trial at circuit.

      Alexander S. Bacon, for app’lt; Tracy, Boardman & Platt, for resp’t.

      Affirming, 54 St. Rep. 319.

   Bartlett, J.

The route of the plaintiff’s electric railroad crosses the track of the defendant’s steam railroad at grade.

The plaintiff operates its road by means of the trolley, or overhead system, of electric power, between Bergen Point ferry in the village of Port Richmond and Prohibition Park in the village of Hew Brighton.

At the time the plaintiff was incorporated a corporation known as the Staten Island Belt Line Railroad Company was authorized to operate a street surface railroad, and its tracks crossed those of the defendant at grade in the village of Port Richmond.

This corporation, through, its receiver, leased to the plaintiff the right to run its cars over that portion of the Belt Line Company track that crossed the defendant’s tracks at grade on a street known as the Shore road.

The defendant maintained at this crossing a gate on each side of the track, which was operated between two posts connected by a chain at the top, which was fifteen feet eleven inches above the surface.

The plaintiff’s trolley cars were obliged to pass between these posts in running over the Belt Line tracks, and the presence of this chain rendered it impossible.

The plaintiff seeks in this action, among other things, the removal of the chain and a permanent injunction restraining the defendant from interfering with plaintiff in the operation of its road.

The plaintiff’s contention, in brief, is, that under its lease from the Belt Line Company, and the subsequent permission of the defendant, it is entitled to operated its road across the tracks of the defendant without interference. The defendant insists that the plaintiff has never acquired the legal right to cross its tracks.

The trial court, in the seventh and eighth findings of facts, finds substantially that the plaintiff, pending negotiations for an agreement, was permitted to operate its road temporarily over the defendant’s tracks by courtesy, and when the negotiations were broken off the permission was revoked.

The proofs in this case are very meagre, but it cannot be said that the findings referred to are unsupported by any evidence.

The plaintiff rested under the burden of proving its legal right to operate its railroad across the tracks of the defendant at grade.

The Belt Line Company, the lessor of the plaintiff, if it had more than a permissive right from the defendant, was authorized to operate a street surface railroad, which would, of course, not interfere with the defendant’s gates and overhead chain.

This corporation, through its receiver, could not confer on the plaintiff any greater rights than it had.

As to plaintiff’s contention that its four months use of the crossing by permission of the defendant had ripened into an absolute legal right, it is sufficient to say that the findings of fact already referred to, show this position to be untenable.

It, therefore, follows that the plaintiff has failed to establish that, either by agreement between the parties, or by authority of law, it is entitled to cross the defendant’s tracks at grade and compel the removal of the obstructive gate chain.

We do not pass upon the merits of this case, nor upon the legal remedies of the parties ; these questions are not presented for our consideration.

The judgment appealed from should be affirmed, with costs.

All concur, except Haight, J., not sitting.

Judgment affirmed.


text:
    Moses D. Tennant, as Administrator, etc., Resp’t, v. Eugene Dudley, App’lt.

      (Court of Appeals,

      Filed January 29, 1895.)

    Evidence—Compromise.
    Evidence of the amount fixed by the claimant, in an ineffectual attempt to compromise, is not competent against him in an action, wherein the amount of his claim is in question.
    Appeal from judgment of the general term of the supreme court in the fifth judicial department, entered upon an order, which affirmed a judgment in favor of plaintiff entered upon a verdict, and also affirmed an order denying a motion for a new trial.

      A. C. Wade, for app’lt; S. W. Mason, for resp’t.

       Reversing, 51 St. Rep. 893.

   Bartlett, J.

This is an appeal from a judgment and order of the general term of the fifth department affirming the judgment and order below denying a new trial.

The plaintiff’s intestate, William H. Renouard, in December, 1886, was the owner of a beneficiary certificate, or policy of insurance, upon his life, issued to him by the Equitable Aid Union, a mutual insurance society, by which the society agreed to pay to the insured, at the time of his death, the sum of eighteen hundred dollars.

Renouard was at this time indebted to the defendant, and procured the certificate or policy to be taken up and a new one issued, payable to the defendant, who thereafter and up to the time of Renouard’s death, paid all assessments thereon. Renouard died in January, 1889.

In June, 1890, the defendant collected the insurance.

The plaintiff, as administrator of Rencuard’s estate, brings this action, alleging that the transfer of the policy of the defendant was merely as collateral security for a debt of one hundred and eighty dollars, and seeks to recover the balance.

The defendant alleges the transfer was absolute and in payment of a debt of thirteen hundred dollars, due him from Renouard, and that by the terms of his arrangement with his debtor, he was to pay the assessments on the policy, Renouard’s funeral expenses and the charges incurred in bringing his remains to the state of New York for burial, if he died in the west, where he resided at the time the policy, was so transferred.

These issues were tried before a jury and resulted in a judgment against the defendant for eleven hundred and ninety-six dollars and costs.

The most important question in the case, as bearing on the probability of defendant’s version of the contract between him and the intestate, was the amount of the latter’s indebtedness to him.

It appears that in March, 1889, shortly after the death of Renouard, and more than two years before this action was begun, an effort was made to settle the matters in difference between the defendant and the children of Renouard, growing out of the disputed ownership of the policy of insurance.

This agreement was reduced to writing, defendant was the party of the first part; the children of Renouard of the second part, and Dean and Hall of the third part. The agreement provided a basis for the distribution of the sum of eighteen hundred dollars, received by the defendant under the policy, and Dean and Hall were to receive the amount and pay it out in the manner arranged.

For the purpose of carrying out this compromise the amount of the indebtedness of Renouard to defendant was fixed at five hundred dollars.

The agreement was signed by all the parties except Dean and Hall.

It appears that the compromise was never carried out, and more than two years after the execution of the agreement this action was begun. At the trial the plaintiff offered the agreement in evidence- and it was objected to by the defendant on the ground, among others, that it was a memorandum of compromise and could not be offered to the prejudice of the defendant.

The objection was overruled and the agreement read in evidence.

It is manifest that the object of offering the agreement was to-contradict the defendant’s statement that Eenouard was indebted to him in the sum of thirteen hundred dollars.

It is clear on the face of -the agreement that the sum of five hundred dollars, named therein as the amount- due from Eenouard to-the defendant, was fixed arbitrarily and in an effort to effect a compromise between the parties. The defendant was also permitted to-testify without objection that the agreement was drawn with the intention of making a compromise without any regard to the amount due to' him.

The rule is well settled that no advantage can be taken of offers made by way of compromise ; that a party may, with impunity, attempt to buy his peace. Laurence v. Hopkins, 13 Johns. 288 ; Murray v. Coster, 4 Cow. 635 ; Williams v. Thorp, 8 id. 201; Home Ins. Co. v. Baltimore Warehouse Co., 93 U. S. 527 ; West v. Smith, 101 id. 263-273 ; Smith v. Satterlee, 130 N. Y. 677; 41 St. Rep. 711.

We think the admission in evidence of this agreement was error, for which the judgment and order appealed from must be-reversed.

There are other alleged errors in the record which have been argued by the appellant, but as a new trial must be had for reasons already assigned, it is unnecessary to examine them.

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

All concur.

Ordered accordingly.


author: Bartlett,

text:
    Henry H. Hustis, App’lt, v. Aaron E. Aldridge et al., as Executors, etc., Resp’ts.

      (Court of Appeals,

      Filed January 29, 1895.)

    Executors—Disputed claim—Reference.
    Where, upon a reference of a disputed claim, two of three referees-appointed decline to serve, the court has, in the absence of any provision to the contrary in the stipulation for the reference, power to appoint other referees, and the exercise of this power is not discretionary but mandatory.
    Appeal from order of the general term of the supreme court in the second judicial department, which affirmed an order of special term which denied a motion by plaintiff for the appointment of two referees in place of two who, having been previously appointed, declined to serve.

      Milton A. Fowler, for app’lt; Frederick-Barnard, for resp’ts.

       Reversing, 64 St. Rep.

   Bartlett,

This is an appeal from an order of the general term, second department, affirming an order of the special term denying a motion by the plaintiff for the appointment of two referees in place of two of three previously appointed who declined to serve.

The order appealed from also vacated the order of reference and the stipulation in pursuance of which it was made.

The plaintiff presented to the executors a claim against the estate of Thomas Aldridge, deceased ; it was disputed and referred under the statute.

In order to determine whether the action of the court below can be sustained it is necessary to examine the provisions of the Code ■of Civil Procedure regulating the practice in such cases.

The mode of ascertaining debts by executors and administrators-is now prescribed by § 2718 of the Code.

After providing for the presentation of claims the section reads as follows : “If the executor or administrator doubts the justice of any such claim be may enter into an agreement in writing with the claimant to refer the matter in controversy to one or more disinterested persons, to be approved by the surrogate.. On filing such an agreement and approval in the office of the clerk of the supreme court, in the county in which the parties, or either of ■them, reside, an order shall be entered by the clerk referring the matter in controversy to the person or persons so selected. On the entry of such order the proceeding shall become an action in the supreme court. The same proceedings shall be had in all respects; the referees shall have the same powers, be entitled to the same compensation and subject to the same control as if the reference had been made, in an action in which such court might, by law, direct a reference.”

These provisions are strictly followed in the case at bar and the decision of the court below must be regarded as made in an action pending in the supreme court.

Two of the three original referees having refused to serve, what was the remedy open to the plaintiff ?

Very clearly to follow the practice as laid down for cases at issue in the supreme court.

Section 1011 of the Code, after providing for the appointment of referees, reads as follows : “ If the referee named in a stipula-

tion refuses to serve, or if a new trial of an action tried by a referee so named is granted, the court must appoint another referee,, unless the stipulation expressly provides otherwise.”

Prior to the amendment of | 1011 incorporating the above provision, it was held that the refusal of the referee to act vacated the order in a non-referable action, as the stipulation upon which it was made was a waiver of the right of trial by jury upon the condition that the case should -be tried by the referee named.

This general rule was, however, limited,- and in the trial of disputed claims by referees under the statutes relating to executors and administrators it was provided that “ the court may set aside the report of the referees or appoint others in, their places.” (2 R. S. 91, § 87).

The amendment to § 1011 of the Code, already quoted, made a radical change in the practice and imposed upon the court the duty of appointing a referee to fill a vacancy caused by a refusal to serve. This power of appointment is not discretionary, but the court must appoint; the section is mandatory.

It will be observed that this provision works no hardship, as the amendment only makes it the duty of the court to appoint if the stipulation fails to provide otherwise.

It is, therefore, always within the power of the parties to protect themselves against the exercise of this power of the court by inserting the necessary provisions in the stipulation.

In the case at bar the stipulation does not contain such provisions, and it was the duty of the court to appoint two referees in the places of those who had refused to serve.

What the court did was to vacate an order of reference which named three referees, one of whom was still in office, and the stipulation upon which it was granted, and the result of its decision wasto discontinue an action pending in the supreme court.

We are of opinion this was wholly without warrant of law.

The order appealed from and the order of the special term should be reversed, with costs, and the motion be remitted to the special term to appoint two referees in the places of those who declined to act.

All concur.

Ordered accordingly.


author: O’Brien, J.

text:
    Louisa Hayden, Resp’t, v. Mary R. Pierce, as Executrix, etc., App’lt.

      (Court of Appeals,

      Filed January 29, 1895.)

    1. Limitation—Rules—Definition.
    The words "rules of limitation,” in § 414 of the Code, do not refer to all the provisions of the chapter, but only to those, fixing periods of time within which the various classes of actions specified therein are to be commenced.
    2. Same—Disputed claim.
    The provision of § 401 of the Code applies to an action upon a disputed and rejected claim against the estate of a deceased person.
    3. Same—Short statute—Absence from state.
    Where the executor was, at the time of the death of the testator, and ever since has been, a resident of another state, an action upon such claim is not barred, though it was not brought within six months after the rejection of the claim.
    Appeal from judgment of the general term of the supreme court in the fourth judicial department, entered upon an order, which affirmed a judgment in favor of plaintiff entered upon a verdict and also affirmed in order denying a motion for a new trial.

      Edmund Luis Mooney, for app’lt; E. W. Harris, for resp’t.

       Affirming 55 St. Rep. 117.

   O’Brien, J.

This was an action upon a written instrument in the nature of a promissory note for $1,000, bearing date January 23, 1882, made by Eliza W. Brown, the defendant’s testatrix, to the plaintiff, payable on or before one year after the death of the maker, with interest. The instrument, upon its face, states that its consideration was services rendered by the plaintiff to the deceased since the year 1864 to date, and to be rendered from that time until the death of the maker, whenever that event should occur. The maker died in January, 1890, leaving a will, in which the defendant, then and ever since a resident of Chicago, was named as executrix. The defendant accepted the trust, duly qualified and proceeded to administer the estate by advertising for claims under the order of the surrogate of Otsego county, where the testatrix resided at the time of her death, and who had jurisdiction in the case.

The notice specified a time and place within that county for the presentation of all claims against the estate of the deceased. The plaintiff presented her claim, and it was rejected on the 25tli of January, 1891, and notice of its rejection given to her, and, as no stipulation to refer it was made, this action was commenced by procuring an order for the publication of the summons, December 14, 1891, which was followed by service of the summons upon the defendant in Chicago, January 9, 1892. The defendant appeared and answered, interposing various defenses, and, among them, payment and the short Statute of Limitations. ■

It appeared upon the trial that the deceased, on the 2d of October, 1886, purchased a house, for which she paid,$1,600, and on the same day conveyed it to the plaintiff for the nominal consideration of one dollar, the grantee giving back to the deceased a contract securing to her the control of the premises during her life, with the right to the rents and profits. The principal question litigated at the trial was whether this house was conveyed to the plaintiff in payment and satisfaction of the claim or as an independent gift or additional reward for her care of the deceased during the long period when such relations existed between the parties. The evidence on this point was conflicting, and the learned trial court submitted the question to the jury and a verdict was found for the plaintiff. It will be seen by the dates above given that this action was not commenced within six tnonths from the rejection of the claim, and as the defendant was, during all the time, a non-resident of the state, the application of the short Statute of Limitations to the case was a pure question of law, which the courts below have decided against the defendant’s contention.

That is now the only question presented by the appeal, as the other defense has been determined against the defendant under such a state of facts as'precludes a review in this court. By § 1822 of the Code, an action upon a disputed claim against the estate of a deceased person must be commenced within six months after its rejection by the executor or administrator, unless it is referred under the statute, or in default thereof the claim is barred. But by § 401, if the defendant, when a cause of action accrues against him, is withont the state, the action may be commenced within the time limited therefor after his return into the state. If this section applies to this case, of course it is a complete answer |to the defense of the short statute of limititions. But the learned '.counsel for the defendant insists that this section has no application to the case, and it must be admitted that the letter of the law at least supports the contention. In chapter four of the Code,, containing over fifty sections, the various periods of limitation applicable to the several classes of actions therein specified are to' be found, and § 401 is one of the provisions of that chapter. Sec- ■ tian 414, the last of the chapter but one, defines the application of the various preceding provisions contained in it, and reads as follows:

“ The provisions of this chapter apply and constitute the only rules of limitation applicable to a civil action, or special proceeding except in one of the following cases:

“ 1. A case where a different limitation is specially prescribed by law, or'a shorter limitation is prescribed by the written contract of the parties.” The other subdivisions of the section are not material to the question under discussion. It cannot well be denied that the six months Statute of Limitations found in § 1822 is “a case where a special limitation is specially prescribed by law,” and as to such cases, by the strict language of § 414, the exception as to non-residence, found in § 401, has no application.

• This result would, doubtless, follow from a literal reading of the section, but we think that such was not the intention of the legislature. It is a familiar rule that a construction of a statute is to be avoided which is liable to produce a public mischief or to promote injustice. Language, however strong, must yield to what appears to be the intention, and that is to be found, not in the words of the particular section alone, but by" comparing it with other parts or provisions of the general scheme of which it is a part.

The argument for the defendant is that all the provisions of chapter four are inapplicable to those special limitations not contained therein, but prescribed by numerous other statutes, and, unless this proposition can be sustained, the contention with respect to § 401 must fail. It will aid very materially in the solution of the question to ascertain what is meant by the expression, “rules of limitation,” used in § 414. Do these words refer to all the provisions of the chapter as such rules, or do they refer only to those periods of time within which the various classes of actions specified therein are to be commenced ? We think they refer to the latter and not to the former; and, if this be so, it follows that there are certain provisions found in the chapter which apply, not only to the general limitations therein prescribed, but to all other limitations to be found in other statutes, and, consequently, to those “ specially prescribed by law.”

A careful examination of all the sections contained in the' chapter will, I think, make this statement reasonably clear. In the first title of the chapter will be found several sections defining possession and adverse possession of land and the manner in which the same is affected, enlarged and limited by the relation of landlord and tenant and otherwise. In a broad sense, these sections do not deal with “rules of limitation,” but with principies for their application to all actions concerning real estate, and are not necessarily to be confined to the actions specified in the chapter. In the two following titles the effect of a partial payment of principal or interest and of a new promise to pay is defined, and exceptions are made in cases of death, infancy, absence from the state and also in cases where a person is disabled from suing in the courts of the state by reason of either party being an alien citizen or subject of a country at war with the United States. Other provisions relate to the method of computing time, and, still others, to cases of counterclaim, where the action is dismissed and discontinued or abates in consequence of plaintiff’s death, or where a former judgment has been reversed without granting a new trial or the commencement of the action stayed by injunction, or where a submission to arbitration has been revoked. The provisions of the chapter with respect to these cases, or some of them, at least, must be applicable to every statute of limitation, general or special. The same result would follow in the application of the two sections which define what constitutes the commencement of an action or an attempt to commence an action in order to avoid the bar of the statute. But, perhaps, the idea which I have endeavored to develope will be best illustrated by reference to the section which just precedes § 414. That section provides that the objection that the action was not commenced in time must be taken by answer. Certainly, this provision must -be of general application, and not limited to the cases prescribed by the chapter in which it is found. It is not a rule of limitation, but a rule of pleading whieli the learned counsel for the defendant has himself carefully observed in this case. It is, therefore, quite clear that chapter 4 contains many general provisions which may be applicable to cases where a special limitation is prescribed by law, and are not to be limited in their scope and effect to those actions specified in the chapter, and that the exception in § 401 in favor of a party who is absent from the state is one of them. Those general provisions are not embraced in the expression “rules of limitation ” found in § 414, but these words refer only to the periods of time designated in the chapter for the commencement of certain actions.

This view is reinforced by some other considerations. The very subdivision of that section now under consideration would seem to except from the operation of the chapter a case where “ a shorter limitation is prescribed by the written contract of the parties.” This permits the parties themselves to agree upon a shorter statute, but in such á case what reason is there for supposing that the general provisions of chapter four to which I have referred would not apply ? Indeed, it is scarcely possible to suppose that any other rule could have been contemplated by the framers of the statute since to exclude these general provisions from the operation and application of a short limitation fixed by the contract of the parties would in many cases work the grossest injustice.

There is a large class of actions and proceedings mostly founded upon some statute and not specified in chapter four to which special limitations apply. I will not now stop to enumerate them, but it will be found on examination that in many of them the limitation, if applied without reference to the general provisions referred to, would work such hardship and injustice that it is reasonably certain that such a result was never within the contemplation of the legislature. It is difficult to conceive how any special limitation applicable to any class of actions can be administered without producing great injustice unless the courts are at liberty to apply to such cases, when necessary, at least some of the general provisions mentioned and which are necessary to a just application of all such statutes.

The learned counsel for the defendant suggests that to hold that the defendant’s absence from the state operated to enlarge the time for bringing the action would enable the executor or administrator of a deceased person, residing in another state, to-delay the settlement of the estate indefinitely. We do not think that such a result must necessarily follow. The powers of the surrogate are ample to compel an accounting and'to enforce the performance of the duties which the personal representative of the deceased owes to the creditors. It may be quite true, as urged, that the plaintiff could have commenced this action within the six months so as to avoid any question with respect to the bar of the statute, but that consideration is not pertinent to the inquiry. The question is not what the plaintiff might or could have done, but what she was obliged to do in order to save her rights. The absence of the defendant from the state operated, to enlarge the time for the commencement of the action, under the general provisions of chapter four, which apply to this case, and hence the claim was not barred, v

The judgment must, therefore, be affirmed.

All concur.

Judgment affirmed.


author: Haight, J.

text:
    William Tubridy, App’lt, v. Stephen J. Wright et al., as Executors, etc., Resp’ts.

      Court of Appeals,

      Filed January 29, 1895.)

    Mechanic’s lien—When bight to file tebminates.
    The right to file a mechanic’s lien for materials furnished and labor performed terminates with the death of the owner of the property.
    Appeal from judgment of the general term of the court of common pleas for the city and county of Hew York, entered upon an order, which affirmed a judgment in favor of defendants entered upon the report of a referee.

      Lawrence E. Prendergast, for app’lt; William J. Leitch, for resp’t.

       Affirming 58 St. Rep. 52.

   Haight, J.

This action is brought to foreclose a mechanic’s lien. It appears that one Samuel 0. Wright, in his lifetime, was the owner of seven houses in the course of erection in the city of New York; that he entered into a contract with the plaintiff to-do the plumbing therein for the sum of $11,000; that the plaintiff entered upon the performance of his contract, and had nearly completed the same when the work was postponed, by the mutual consent of the parties, until further direction by Wright. Shortly thereafter Wright died, leaving a will whereby he devised his property to the defendants in trust. The defendants then called upon the plaintiff to complete his contract, which was done, and thereafter, within the ninety days prescribed by the statute, he filed a lien against the property for the sum of $2,557.70, the amount then remaining unpaid upon his contract.

The referee found that the value of the work done by the plaintiff, under the direction of the defendants, was the sum of $60, for which amount he ordered the usual judgment, and refused to include the balance of the plaintiff’s claim.

The question presented upon this review is as to whether the plaintiff acquired a valid lien upon the property for the work done under the contract prior to the death of the defendants’ testator.

It has been held that, upon the death of the owner of real property, the title passes to his heirs at law or devisees, and that the right to file a mechanic’s lien for materials furnished and labor performed terminates with his death. Crystal v. Flannelly, 2 E. D. Smith, 583; Meyers v. Bennett, 7 Daly, 471 ; Brown v. Zeiss, 9 id. 240; Leavy v. Gardner, 63 N. Y. 624. It is contended, however, that these decisions were made under other statutes and were based upon special language incorporated therein, and that they should not be regarded as decisive of the question now presented.

The statute under which the plaintiff sought to perfect his lien is chapter 342 of the Laws of 1885. Section 1 of the- act gives to the person performing the work or furnishing material used in the erection of any building, etc., with the consent of the owner, a lien to the extent of the owner’s interest therein, not, however, exceeding the amount remaining unpaid upon the contract. Section fi ve provides that “ the liens provided for in this act shall be preferred as prior liens to any conveyance, judgment or other claim which was not docketed or recorded at the time of filing the notice of lien prescribed in the fourth section of this act,” etc.

The statute under which Brown v. Zeiss (supra) was decided, provided that “the liens provided for in this act shall be preferred to any lien, mortgage or other incumbrance of which the lien-holder had no notice and which was unrecorded at the time of the filing of the claim,” etc.

It will be observed that the only material change in the statute is the incorporating therein the word “ conveyance; ” and it is not apparent how this affects the construction of the statute as to the question under consideration. No provision is found in the statute giving the claimant the right to acquire a lien after the death of the owner.

Mechanics’ liens are created by the statute, and whilst the law should receive a liberal construction, so as to secure the beneficial purpose had in view by the legislature, yet, as it creates a remedy unknown to the common law, it may not be extended to cases not fairly within its general scope and purview. Spruck v. McRoberts, 139 N. Y. 193; 54 St. Rep. 461; Stevens v. Ogden, 130 N. Y. 182; 41 St. Rep. 331; McCorkle v. Herman, 117 N. Y. 297; 27 St. Rep. 333.

It may be claimed that the equities in favor of the lienor are as strong after the decease of the owner as in his lifetime, but the difficulty is, that upon his death the rights of the general creditors intervene, who are entitled to have the entire estate, if necessary, devoted to the payment of their claims.

The judgment appealed from should be affirmed, with costs.

All concur.

Judgment affirmed.


text:
    In the Matter of the Judicial Settlement of the Accounts of William Collins, as Executor, etc.

      Court of Appeals,

      Filed January 29, 1895.)

    1. Executors—Accounting.
    An executor, ordered to account as such for the proceeds of real estate sold under a power of sale given by the will, need not account also in the . character of a testamentary trustee, where the will creates no trust in the real estate, either directly or by implication.
    2. Same.
    ■The accounting should not include a sum which, by an arrangement among the devisees, was used to produce an annuity bequeathed to the widow, where such fund was all the time the property of such devisees and never belonged to, or formed any part of, the testator’s estate.
    Appeal from a portion of the order of the general term of the supreme coürt in the first judicial department, which reversed a decree of the surrogate’s court of the county of New York entered upon an accounting of the executor of the will of John G. Collins, deceased, and which remitting the proceedings to that court for a further accounting.
    John G. Collins died in 1858. His estate consisted of personal property, a piece of real estate, No. 41 Wooster street, New York city, and another piece in Eighty-fourth street. His will was admitted to probate September 20, 1858. It provided that, during her widowhood, his wife should have the net income of his property in Wooster street for the support of herself and their children. He' also gave her certain personal property absolutely and the interest and income, use and benefit of all the the testator’s estate during her widowhood. In case, however, she re-married she was restricted to the use during her life of the house and lot in Eighty-fourth street, sometimes called the house in Yorkville, and an annuity of fifty dollars, the income of the estate, except the annuity and Eighty-fourth street house, to be divided between the testator’s children until his son George W., who was his youngest child, arrived at age. At that time, if the widow had re-married, all the estate, except the Eighty-fourth street house and the amount set apart to raise her annuity of fifty dollars, it was directed should be divided between the children. At the death of the widow the Eighty-fourth street house was directed to be sold by the executors, and the proceeds thereof, and of all the residue estate, divided between the testator’s “ descendants.”
    The testator left him surviving his widow and three children, William, John W. and George W. Collins, the two latter then being infants. In 1860 the widow re-married Daniel Saunders. In 1861 William Collins and John Findley, the only executors who qualified, rendered an account in this court. The usual proceedings were had and a decree was entered June 1, 1861, showing a balance in their hands of $523.36, which they were directed to distribute. The rents of the Wooster street property were received by William Collins, as executor, from the time of his mother’s remarriage in 1860 until the property was sold to him as hereinafter .stated. George W. Collins, the youngest son, became of age in August, 1866. In May, 1867, William Collins purchased from his two brothers their interest in the Wooster street property. In April, 1874, the Eighty-fourth street property was sold to Abbie M. W. Peffers. The conveyances were made, one by William Collins, as executor, the other by Mary Saunders, the widow, William and John W. Collins and their wives and George Collins.
    John W. Collins died January 7, 1877, leaving a widow, also one child named Emma L. Collins.
    Mrs. Saunders died in October, 1886.
    Emma L. Collins, the general guardian of Emma L. Collins, who is an fnfant, on January 13, 1890, filed her petition setting forth, among other things, that William Collins was the sole surviving executor of John G. Collins; that by reason of the death of John W. Collins, her father, said infant was entitled to a distributive share in the undistributed proceeds of the estate ; that various payment had been made to the general guardian on account of such distributive share, and that the petitioner believed that other funds had not been accounted for or distributed. The prayer was that the executor be required to account. On January 13, 1890, the said executor filed a petition that all parties in interest be cited to attend upon such accounting, and thereafter and on March 3, 1890, an account was filed.
    It appeared that when John W. and George W. sold their shares in the Wooster street property to William they made an agreement in writing that a fund of $1,000 should be set apart to raise the annuity of $50 for the widow, to which fund each should contribute one-third; this fund to be left in the bands of William; the shares of John W. and George W. to be contributed out of their shares of the purchase money due from William on the Wooster street property. It does not appear that Mrs. Saunders objected to this arrangement.
    It was claimed on behalf of Emma L. Collins that this fund, or at least so much of it as was contributed thereto by John W. and George W., together with any interest realized thereon in excess of $50, the amount of the annuity, should be accounted for as assets of the estate.

      The appeal to this court was from that portion of the order of the general term of the supreme court which directs that the proceeding be remitted to the surrogate for an accounting of the executor as such, instead of directing its remission for an accounting by him, as trustee, under the will of the said deceased;. “ and in so far as he fails to make provision for an accounting by said William Collins as such trustee.”

      Jacob S. Van Wyck, for app’lt; Robert Hunter McGrath, Jr., for resp’ts.

       Affirming 54 St. Rep. 23.

   Finch, J.

The appellant’s argument covers an area very much beyond the scope of the real questions involved in this appeal. Those are only whether the executor ordered to account .as such for the proceeds of real estate sold under a power of sale given by the will, should account also' in the character of a testamentary trustee, and whether the accounting should include a sum .of $1,000 which, by arrangement among three of the devisees, was used to produce an annuity of $50 bequeathed to the widow. There is hardly room for argument over either question. The will creates no trust in the real estate, either directly or by implication. Purely legal estates were devised, and those vesting at once in the devisees upon the death of the testator, and involving no duty beyond that which an executor is competent to perform. What is-known as the Wooster street property, and the Yorkville house and lot, constituted the whole of testator’s real estate. His personal property was all exhausted and has been fully accounted for. The widow was given the income of all the real estate until her re-marriage, which occurred within two years after testator's death and upon such second marriage she was to have only an annuity of $50, and a life estate in the Yorkville property. All the residue was to be divided among the three children. Thereby the fee of the real estate was vested in them, incumbered only by the widow's life estate and the charge of the annuity. In this disposition there-is no trace of trust or trustee; nor the least need of either; and only the ordinary case of a devise of purely legal estates. The executor as such joined with the widow and devisees in a sale of the Yorkville property and has been ordered to account for the proceeds. Whether the power of sale was applicable to the situation, or the title transferred vested wholly upon the deed of the devisees, is a question not before us. The executor took the proceeds in his representative character and has been ordered to account for them, which was entirely proper. Hood v. Hood, 85 N. Y. 570. What more could be asked or required it is difficult to see. The defendant sold the land and received the proceeds, either as agent for. the owners or as executor under a power of sale, but never as a testamentary trustee dealing with a trust estate Vested in him by the will. To insist upon treating his act as done in the'latter character is not only without adequate reason but would confuse and complicate a very plain situation, and peril the admitted rights of the parties interested.

The annuity of $50 to the widow was probably a charge upon the Wooster street property which, after the widow’s marriage, belonged entirely to the three children. The personal estate was exhausted, the income of the Yorkville property belonged to the widow, and so the annuity became a charge upon the only remaining real estate in, the hands of the children. They so regarded it. The will had directed them to make necessary provisions for its payment. The direction created no trust, set apart no trust fund, but left the executors free to provide for it out of the estate. The three devisees of 'the Wooster street property, to exonerate their land from the charge, contributed each one-third of $1,000, and that sum was placed in the hands of William to obtain by investment the needed annuity.' That fund was all the time the property of the three children and never belonged to or formed any part of the testator’s estate. It was held and managed by William as agent of the devisees, and its annual income alone was payable by him as such agent in discharge of the annuity. When, by the death of the widow, the annuity ended, the purpose of the fund was accomplished, and it reverted to the sons freed from the charge upon it. If William holds it still it is not in the character of executor or as part of testator’s estate.

There was no error of which the appellant can complain and the judgment should be affirmed, with costs.

All concur.

Judgment affirmed.