text:
    Bernard Brady, Resp’t, v. The Mayor, etc., of New York, App’lt.

      (Court of Appeals, Second Division,

      Filed April 26, 1892.)

    1. Municipal corporations—Contract.
    Plaintiff’s assignor in 1883 contracted with defendant to excavate and grade Ninety fifth street. In 1885, having completed his work, he rendered an itemized statement showing a balance of $31,000, and it was certified to be correct by the chief engineer, superintendent of streets and ■commissioner of public works, and defendant entered into and has «since had possession of the street. Four years afterwards he brousht this action to recover the amount due on the contract, which defendant refuses to pay on the ground of a failure of performance, in that he had not ■excavated the rock to two feet below grade as required. The contract required the entire work to be completed " to the satisfaction of the commissioner of public works and in substantial accordance with the specifications here annexed and the plan therein referred to.” No fraud was charged. Held, that the contractor was entitled to recover the sum certified, with interest.
    3. Same—Wrong grade given by surveyor.
    _ Where the grades were given by the surveyor or his assistant; examination made after the excavation was completed and before filling in was done; the filling subsequently made to grade, and the work accepted, if . the grade was mistakenly given to the contractor by the surveyor and the work done in conformity therewith and certificates of completion after wards given, the defendant cannot thereafter refuse to pay because as the result of a misdirection by its officers the specifications had not been literally complied with.
    Appeal from a judgment of the general' term of the superior-court of the city of New York, affirming a judgment of the trial term of that court, entered on the direction of a verdict.

      David J. Dean, for app’lt; L. Laflin KeUogg, for resp’t

       Affirming 32 St. Rep., 99.

   Parker, J.

The judgment under review awards to the plaintiff, as assignee of one John Brady, the sum of $42,792.35, adjudged to be due under a contract between John Brady and the defendant, by which it'was provided that Brady should regulate and grade Ninety-fifth street, from Tenth avenue to Riverside drive, for which he was to receive eight dollars per cubic yard for excavating earth, one-fourth of a cent per cubic yard for excavating rock, and one-fourth of a cent per lineal foot for furnishing and setting curb-stones, and for furnishing and laying flagging per square foot, one-fourth of a cent

This will be recognized as what is known as an unbalanced bid, but its legality is not sought to be questioned here, and if it were it would not be open for consideration, in view of the discussion of the question as presented by the contract now before us by Ruger, Ch. J., in 115 N. Y., 599; 26 St. Rep., 340.

Prior to the commencement of this action the officials authorized by the contract to represent and act for the city in all matters relating to the performance of the work stipulated for by it, made the following certificates:

“ Surveyor’s Certificate.
' “ I hereby certify that the following, amount of work has been ’ done in the matter of regulating and grading Ninety-fifth street, from the west curb of Tenth avenue to the east line of Riverside.Drive, and setting curb-stones and flagging sidewalks therein.
“John Brady,
“Contractor since the commencement of the work.
“ 14,667 cubic yards of earth excavated (fourteen thousand six hundred and sixty-seven).
“ 10,831 cubic yards of rock excavated (ten thousand eight, hundred and thirty-one).
“-- cubic yards of filling.
“ 2,591 2f-12ths linear feet of curb set (twenty-five hundred! and ninety-one and two three-fourths twelfths).
“ 10,452 7-12 square feet flagging laid (ten thousand four hundred and fifty-eight and seven-twelfths).
- “-linear feet of dry stone box culverts.
“-linear feet of picket fence.
“Herman K. Yiele, Surveyor.
“Date May 27, 1885.
“George A. Jeremiah,
“Superintendent of Street Improvements.”
Final Payment.
“The City of New York,
■“ To John Brady, Contractor, Dr.:
“For work done in the matter of regulating and grading Ninety-fifth street from the west curb of Tenth avenue to the east line of Riverside Drive, and setting curb-stones and flagging .sidewalks therein.
“ Certificate of acceptance of the work by the commissioner of public works, dated September 21, 1885, chapter 397, Laws 1852 ; •chapter 580, Laws of 1872, § 4.
“ Street improvement fund, authorized or contracted for after ■June 9, 1880.
“ Ordinance approved March 20, 1883 (Sec. 139, N. Y. Consolidation act of 1882). Estimated cost, $15,676.28.
“ Date, 1885, Sept. 30.
“ I certify that I have duly examined the above account and compared it with the contract and the surveyor’s certificate, and that it is correct, and the amount justly due.
“ George W. Birdsall,
Chief Engineer Croton Aqueduct.
“ George A. Jeremiah,
Superintendent of Street Improvements.
“ I hereby certify that I have examined the above account and believe it to be correct; that the prices charged are in accordance-with the terms of the contract for regulating and grading Ninety-fifth street, dated July 31, 1883 ; and such services as are herein, specified have been properly performed, according to the certificate of the officers of this department duly appointed to supervise-the same.
“ Eollin M. Squire,
Commissioner af Public Works.
“ I certify that the work mentioned in the contract herein specified has been completed according to the terms of said contract,, and is satisfactory.
“ Eollim M. Squire,
Commissioner of Public Works.

The judgment recovered is for the sum thus certified to be due with interest added.

It is not asserted by the answer that the contract was fraudulently procured, or that it was for any reason invalid. On the contrary, the defendant relies on it and asserts that the plaintiff cannot recover because of a failure of performance on the part of his assignor. In order that it shall clearly appear in what respect-it is claimed the contractor has failed to perform in such substantial respect as to prevent a recovery in any sum whatever, it is-desirable in this connection to call attention to the situation of the-contract and the parties to it at the time o£ the trial.

Nearly four years before that time the officers named by the-defendant in its contract made the certificates which by its terms were to determine the final completion of the contract and the-right of the contractor to receive the compensation within thirty days thereafter ; the commissioner -of public works specially certified that the contract had been completed according to its terms,, and was satisfactory.

About that time the defendant entered into and has since continued in possession of the street. It should be further observed that the defendant does not claim that the certificate made by the engineer, surveyor and superintendent of street improvements-over states the quantity,of materials of any kind therein certified; nor is it claimed that this plaintiff has recovered judgment for excavations made, or work of any kind done which was not in, fact performed. In other words it is not disputed that plaintiffs assignor actually removed all the material and did all the work for which he has recovered judgment; nor is it asserted that the work was not performed as directed by the officers having charge of the execution of the contract for the defendant.

But it is contended that the contractor did not excavate the rock to two feet below the grade. The contract provides that “ the street is to be regulated two feet below the grade where there is rock, in sections of not less than 100 feet in length for the full width of the street at a time, and is to be examined by the surveyor before placing any filling therein, after which earth filling is to be filled to grade. * .* * Any portion of the street not thus regulated and properly examined will not be received as finished.”

It is not disputed but the earth was removed from the street; rock excavated; examination made by the surveyor; the earth brought back and filled up to the grade required by him; or" that the work was not declared to be properly done, and received as finished after it was done; neither is it claimed that the officers of the defendant have at any time suggested to the contractor or his .assignee that there was some mistake or oversight at the time of the making of the certificates to the effect that the contract had been completed, at the same timé insisting that notwithstanding their execution and delivery to him, further work should be done.

So appellant’s contention amounts to this, that notwithstanding the defendant made a contract by which it agreed to pay for the doing of certain work, if done in substantial compliance with the terms of the contract, and to the satisfaction of the commissioner of public works, upon a certificate by him to that effect together with certificates by the surveyor and superintendent of streets; and notwithstanding the making of such certificates and the taking of possession by the defendant, of the completed work, that it may put in issue the contractor’s assertion of performance, by 'Calling a witness to testify that he has made an examination and found rock nearer to the established grade than two feet in a number of places, the quantity on the entire work being estimated by him at 650 yards. That upon such evidence it may wholly ■defeat a recovery.

At the threshold of its contention the defendant is confronted with the difficulty that its pleading does not present the issue on which its reliance is sought to be placed.

The answer admits the making of the contract; the making and delivery of the certificates by the four officers named in the •contract; payment thereon by the city.

It further admits “ that the said work has been accepted by the commissioner of public works, acting on behalf of the defendant, and that more than thirty days have expired since such acceptance ; but it alleges on information and belief that such acceptance was on or about the 7th day of May, 1885, instead of the date named in the first paragraph of the complaint,” and it further alleges among other things that all of the earth and rock -excavation in the complaint in this action, and in the said contract referred to, was completed before the 6th day .of February, 1885, and the whole of the rock excavation provided for by said contract and'described in the complaint herein was completed on or before the 7th day of May, 1885.

It cannot avail the defendant on this review that, notwithstanding the admission of the answer, which, with the evidence given,, fully supports the determination of the court in directing a verdict in favor of the plaintiff, the testimony was received on which it founds its claim of right to go to the jury. For such testimony was seasonably and properly objected to by the plaintiff on the ground that it was not admissible under the pleadings. Its reception was error and the plaintiff having duly excepted to the-rulings, this court is precluded from considering it for the purpose of a reversal.

If it be assumed that the pleadings permitted the introduction of evidence presented by the defendant we should still reach the-conclusion that it was not error for the trial court to direct a verdict.

The appellant’s position assumes that a literal compliance with the specifications forming a part of the contract was essential incomplete 'performance under the contract. We do not so read it,, and shall briefly call attention to some of its provisions which we deem controlling in that direction. In the first place the proposal intended to inform bidders not only of the character, but the general amount of work to be performed; time of performance and other essential features of the contract to be subsequently entered into; states that “ bidders will be required to complete the-entire work to the satisfaction of the commissioner of public-works and in substantial accordance with the specifications here-annexed and the plan herein referred to.”

Immediately following the stipulation in the contract on the part of the contractor, that he admits and agrees that the work to-be done as stated in the proposals is approximated only, and that-he will not assert any misunderstanding in regard to the depth of excavations or nature of materials, it is declared “ and he covenants and agrees that he will complete the entire work to the satisfaction of the commissioner of public works, and in substantial, accordance with said specifications and the plan therein mentioned.”

The first clause in the specifications reads : “ The street for its; whole width is to be regulated and graded where required in accordance with the plans and profile of the said street.” By its-terms the commissioner of public works was empowered to designate the time when the work should commence; was given power to suspend the work; to order it commenced again ; to. declare it abandoned; to consent to its being sub-let, or assigned by the contractor; and invested with the right to declare the same null and to re-advertise and re-award it. While it is agreed that the-commissioner shall have, among other powers, those already enumerated, the contractor further directly agrees to do work not, described in the specifications if required to do so by the commissioner of public works.

One of the subdivisions of the contract having in contemplation, the possible desirability of doing other work than provided for in* the contract, provides that other persons may be employed to do such work, and the contractor “ will suspend such part of the work herein specified, or will carry on the same in such a manner as may be ordered by the said commissioner.”

It is also agreed that if within six months after the acceptance ■of the work, if, in the opinion of the commissioner, repairs are required and notice to make them given, the contractor “ will immediately commence and complete the same to the satisfaction of said commissioner.”

It was covenanted that the city should retain the sum of twenty-five cents per linear foot of the work to be done as security for repairs, and that it might be expended “ in the manner hereinafter provided for in making such repairs to the work done under this agreement as the said commissioner of public works may deem necegsary.”

tinder the heading, “ work and material must agree with specifications,” is the following: Party of the second part “agrees that the work shall be performed in the best manner, and the stone, sand and other material of which the work is composed shall be of the best kind, and that a sufficient number of persons -shall be at all times employed to execute the work with due dispatch, the whole to be done to the satisfaction of the commissioner of public works; and any materials furnished or work done not satisfactory to the commissioner of public works shall be removed and satisfactorily replaced by the said party of the second part.”

These provisions are not in conflict with other portions of the contract, but, on the contrary, are supported by and consistent with them, and establish that the specifications were not necessarily to be exactly, but substantially, performed, in accordance with the specifications and to the satisfaction of the commissioner -of public works.

Thus it was stipulated not only that the work should be done to the satisfaction of one of defendant’s officers, but that as the representative of the defendant and acting for it, he should determine whether the contract was substantially complied with.

How;, the uncontradicted evidence is that the surveyor, or his •assistant, gave to the contractor the grades to which the excavations were conformed. The defendant distinctly provided in its ■contract that its surveyor should be one of the officers to represent its interests in the execution of the contract, and that his certificate that the work had been completed should be essential to ■the right of the contractor to demand compensation for his work. Hot only does it appear that the grades were furnished by the surveyor, or his assistant, but it also appears that he subsequently certified to the completion of the work as provided by the contract. That the contractor was at liberty to follow the directions •of the officers whom the defendant had stipulated to represent it and speak for it in the execution of the contract is manifest not -only from the provisions of the contract already referred to, but also from two others to which allusion may be briefly-made.

Tinder the heading “ change of grade ” it is conditioned that “ the said party of the second part hereby further agrees that in ease the grade of the street shall be changed during the progress, of the work he will conform to the altered grade at the prices-specified herein as far as they are applicable. ”

Under the heading “ excavating ” it is said: “ The street is to-be regulated two feet below the grade, where there is rock, * * * and is to be examined by the surveyor before placing any filling-thereon, after which earth filling is to be filled to. gradé. Any portion of the street not thus regulated and properly examined will not be received as finished.”

It may be observed that the -undisputed evidence is that the? grades were given by the surveyor, or his assistant; examination made after the excavation was completed and before any filling-was done; the filling subsequently made to grade, and the work accepted.

It is quite clear that it was the intention of .the. parties under this contract that the contractor should in its execution be-governed by the direction of such of defendant’s officers as it declared in the contract should represent it. So if the grade should be mistakenly given to the contractor by the surveyor and the-work should be done in conformity therewith, and certificates of completion afterwards given, the defendant could not thereafter object that the plaintiff should not be compensated because as the-result of a misdirection by its officers the specifications had not been literally complied with.

A similar contract was considered-by this court in Mulholland v. The Mayor, 113 N. Y., 631; 22 St. Rep., 347.

The engineer made a mistake in furnishing the contractor with the grade, with the result that after the work had been done, the-city’s officer's having in the meantime discovered the error, the contractor was required to excavate deeper and as it appears at greater expense to him than would have been incurred had the' true grade been given in the first instance. It was held that he was entitled to recover the value and the amount of the extra labor and increased expense. Necessarily the foundation of that decision rests on the proposition that under the contract the contractor is authorized to follow the directions of the officers named in its contract tó represent it. Otherwise the court must have-held that defendant could not recover for extra work because the? depth of the excavation was specified in the agreement and therefore could have been followed. Such a construction of the contract seems to be required by its terms and is just to both parties.

Again the city not only provided for a substantial perforarance: in accordance with the specifications; stipulated that the commissioner of public works should determine what should constitute a performance; provided for daily inspection; for right to-change the grade; for an examination by a surveyor after excavation, and prior to placing the filling thereon; but also for a certificate by three of its officers, or employees, to wit: the surveyor,, inspector and superintendent of street improvements in charge of the work, and commissioner of public works, that the work had been completed.

The city required the contractor to agree, and he did, that after completing the work he should not demand or receive payment, until such completion “ be duly certified by the surveyor, inspector and superintendent of street improvements in charge of the' work, and until each of the other stipulations hereinbefore mentioned are complied with and the work completed to the satisfaction of the commissioner of public works, and accepted by him.”

After the making of such certificates and the acceptance of the work by the commissioner of public works, the defendant agreed to pay on or before ■ the expiration of thirty days from the time of the completion of the work. The certificates thus provided for have been made. The commissioner of public works has accepted the work. That such certificates were made in good faith is not questioned, nor is it claimed that there was any mistake of fact therein. The defendant, therefore, cannot now challenge the decision of those whom it contracted should determine the question of performance or non-performance, and upon whose determination it promised to make payment.

The provision of the contract upon which defendant largely-founded its argument in support of a reversal, if requiring the construction contended for, might present an interesting question, because such provision would then be brought in conflict with other-portions of the contract.

It is claimed that it operates to so relieve the city from the-effect of its stipulation touching the question of performance, as to permit it to challenge the allegation that the work has been-completed notwithstanding the making of the certificate and the acceptance of the work by the commissioner of public works. But it does not require and should not receive the construction asked for. It provides that the defendant, nor any of its officers-nor departments, shall “be precluded or estopped by any returner certificate made or given by any engineer, surveyor, inspector, or other officer, agent or appointee of said department of public-works, or said parties of the first part, under or in pursuance of anything in this agreement contained, from at any time showing the true and correct amount.and character of the work which shall have been done and materials which shall have been furnished by the said party of the second part, or any other person or persons under this agreement.”

If it had been intended to provide that the city’s agreement to-be bound by the certificates of its officers and acceptance by the-commissioner of public works should be nullified by the subsequent objection of any officer or department, it could and doubtless would have been plainly and tersely expressed. So that the contractor should understand that while the contract prevented him from demanding compensation until after the city’s officers should make certain certificates, the city’s agreement was only to pay within thirty days after making of the certificates in case the defendant or some department or officer of the city should not object, in which event some tribunal not provided for in the contract should be called on to determine whether there had been performance; to decide whether the work had been done to the satisfaction of the commissioner of public works. That in such case the premise in the contract that the commissioner should himself decide whether he was in fact satisfied should go for naught and some one else should decide it for him.

But these suggestions need not be extended. The clause which we have quoted is entirely separated from the concluding portion of the contract which undertakes to provide how performance shall be ascertained and bindingly declared, and was not intended to trespass on its provisions.

It does not provide that such certificates shall not estop the defendant from showing failure of performance, but it shall not estop it from showing the true and correct amount and character of the work done and materials furnished. Not that the city can prevent a contractor from receiving what has been earned under a contract when the certificates shall have been given, but that it may prevent a recovery for a greater amount than the work was worth

Therefore it reserved the right to challenge, 1. The amount of the work ; this would include the dumber of yards of earth and rock, and number of feet of curbing, etc. 2. The character of the work; this would enable the defendant to show in a proper case that rock had been estimated as earth, or vice versa. By this provision therefore it is left open to the defendant to call upon the court to so correct the certificates as to quantities and kinds of materials as to prevent a recovery for any greater sum under the contract than was therein stipulated for.

But that feature of the contract is of no importance here for, .as we have said in another portion of the opinion, it is not disputed but the work for which plaintiff claimed to recover was of the character and amount claimed.

The judgment should be affirmed.

Judgment affirmed, with costs.

All concur; Landon, J., in result


source: Caselaw Access Project

author: Vann, J.

license: Public Domain

text:
    Abraham Rothschild, Resp’t, v. Clarence Whitman et al., App’lts.

      (Court of Appeals, Second Division,

      Filed April 26, 1892.)

    Malicious prosecution—Counterclaim—Code Civ. Pro., § 501.
    In an action for malicious prosecution and causing the arrest therein of plaintiff on an order of arrest in September, 1887, defendants set up as a counterclaim a cause of action for deceit by plaintiff in obtaining goods from them on credit by false representations in January, 1887, which constituted one of the causes of action upon which plaintiff was arrested. Held, that the counterclaim and claim did not arise out of the same transaction, nor was the counterclaim connected with the subject of the action by plaintiff, and could not be maintained.
    Appeal from an order of the general term of the supreme court in the first judicial department, reversing a judgment entered upon the decision of the court at special term overruling a demurrer to a counterclaim pleaded by three of the defendants.

      The plaintiff alleged in his complaint that, on the 1st of September, 1887, the defendants, “ not having any just or probable-cause of action against the plaintiff, did * * * wrongfully,, unlawfully and maliciously begin an action against ” him and. “ did cause to be issued out of the supreme court * * * a. certain alleged order of arrest ” therein and did cause him to be arrested thereunder and kept in custody for about a week, so that he was compelled to abandon his business and expend a large-sum of money “ in and about said arrest.” He further alleged, that afterwards, on his motion, the order of arrest was duly vacated. “ upon the ground that the same was illegal, unauthorized, and that the court had not jurisdiction to grant the same, * * and defendant discharged thereunder, and that said proceeding-has been wholly and finally terminated in favor of the plaintiff and against the said defendants by final order of- the said court.”
    The defendants, Whitman and Creighton, after pleading certain defenses, alleged “ for a further defense and by way of counterclaim ” that the plaintiff, as the manager of a certain firm, induced them to sell it goods worth $2,790.23 on credit, knowing and intending that said firm “ would not and could not ” pay for the same, and that he effected said sale by fraud, deceit and false-representations as to the financial standing of said firm; that after the receipt of said goods and others of great value obtained in the same way from other persons, the plaintiff and said firm, “ with intent to cheat and defraud their creditors and in execution of their intention not to pay for ” the same, secretly shipped them away and concealed, sold and otherwise disposed of' the bulk thereof; that the plaintiff used the proceeds of the goods so obtained and disposed of to reopen one off the stores formerly occupied by said firm and to conduct therein under another name a business of the same character that he had lately conducted as manager; that the defendants had no knowledge of the falsity of said representations, but relied upon the same, and were deceived thereby to their damage-in the sum of $2,790.23: “ that the matters hereinbefore alleged constitute part of the grounds and one of the causes of action for which the arrest of the plaintiff, complained of in this action, was-made, and the vacating of said arrest was not on the ground that said allegations were untrue, but because of a misjoinder of causes of action and parties.”
    By a separate answer the same facts were pleaded “ by way of mitigation and defense.”
    The plaintiff demurred “ to the alleged counterclaim ” on the ground that “it does not constitute a cause of action arising out of the contract or transaction set forth in the complaint as the-foundation of the plaintiff’s claim, nor is it connected with the subject of the action.”
    The special term, in overruling the demurrer, held that if the-complaint was for malicious prosecution, the counterclaim was-properly pleaded ; that if it was for false imprisonment, the counterclaim was not properly pleaded; that as the complaint was susceptible of either construction, the meaning least favorable to the pleader should be taken, and that the plaintiff by alleging malice .and want of probable cause was estopped from saying that there was no connection between the counterclaim and the subject of the action.
    The general term reversed upon the ground that the counterclaim was not connected with the subject of the action, in any legal sense, and that it did not arise out of the same transaction.

      John S. Davenport, for app’lts; Otto Horwitz, for resp’t.

       Affirming 32 St. Rep., 560.

   Vann, J.

A counterclaim must tend in some way to defeat or diminish the plaintiff’s recovery, and must be either, (1), a cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim, or connected with the subject of the action, or, (2), in an action on contract, .any other cause of action on contract existing at the commencement of the action. Code Civ. Pro., § 501.

The counterclaim in question is a cause of action tending to ■diminish the plaintiff’s recovery and, to that extent, conforms to the requirements of the statute. As this is not an action on contract, before we can determine that the counterclaim should stand as a pleading, we must ascertain whether it arose out of the transaction set forth in the complaint; and, if it did not, whether it is connected with the subject of the action within the meaning of the Code. What is the transaction set forth in the complaint •as the foundation of the plaintiff’s claim ? It is the commencement of an action against him, with malice and without probable cause, and his arrest therein under process that was afterwards set aside as illegal. What is the counterclaim ? A cause of action for damages caused by deceit in the purchase of goods on credit. The deceit was practiced and the goods obtained in January, 1887, while the action was commenced and the arrest made in the following September.

While the deceit was .the inducement to the action and arrest, it arose out of neither,, because it preceded both and existed independently of both. Although it was the alleged ground of the action and arrest, it was not the cause of either, but was rather the pretext, or ostensible reason. A groundless and malicious prosecution is caused by the act of commencing the actian, not by the reasons given for commencing it. An illegal arrest, such as that in question, is caused by the issuing and service of the order of arrest, not by the facts recited therein. There is no relation of cause and effect between an illegal act, or the ■determination to do one, and the excuse alleged for doing it. We think that the claim and counterclaim did not arise out of the ■same transaction, and that the plaintiff’s claim rests upon an en- ■ tirely different, foundation from the defendants’ counterclaim. Bach was a separate and distinct wrong and a transaction by itself.

The question remains whether the counterclaim was connected with the subject of the action, or, in other words, with the facts constituting the plaintiff’s cause of action. Chamboret v. Cagney, 32 Supr. Ct., 378; Lehmair v. Griswold, 40 id., 100.

The complaint and answer set forth independent torts, differing radically in nature and committed upon occasions widely separated. Whether the subject of the action is malicious prosecution, or false imprisonment, it is distinct and independent of the claim of the defendants. There is no necessary or legal connection between the two. It is not like an action for converting wood and a counterclaim for waste in cutting the same wood, Carpenter v. Manhattan Life Ins. Co., 93 N. Y., 552; or where certain goods are the subject of the action and a "claim is made for the value of the same goods, Thompson v. Kessel, 30 N. Y., 383; or where a mutual claim is made to a trademark. The Glen & Hall Mfg. Co. v. Hall, 61 N. Y., 226.

On the contrary, the effort is here made to set up one tort committed in January against another committed in September, the •one being for an injury to property and- the other for an injury to the person. The circumstance that the deceit which constituted the former was the pretext, or excuse for perpetrating the latter, establishes no such connection as to satisfy the statute, any more than if A. slanders B. on the 4th of July and B. thrashes him for it at Christmas. Schnaderbeck v. Worth, 8 Abb. Pr., 37; Fellerman v. Dolan, 7 id., 395 n.; Askins v. Hearns, 3 id., 184, 187.

The judgment should be affirmed, with costs, with leave to the •defendants to amend their answer within twenty days upon the payment of costs.

All concur.


author: Brown, J.

text:
    Mary E. Luetchford, App’lt, v. Elizabeth Lord, Impleaded, Resp’t.

      (Court of Appeals, Second Division,

      Filed April 26, 1892.)

    Mortgage—Q-aming debt—Evidence — Code Civ. Pro., § 839 — 1 R. S., 663, §§ 16, 17—Witness.
    The answer in an action to foreclose a mortgage alleged that it had been given in part for moneys lost by the mortgagor’s husband at a game of poker; that if she had died at the time of the execution of the bond and mortgage, her four children, naming them, would have been entitled to the real estate described, and prayed that the instruments be declared void, or enure to the said children under the statute. Held, that the result of proving the facts set out in the answer and which it was proposed to prove by her said husband, would be to confine the enforcement of the bond and mortgage to the land and destroy the personal liability of the obligors upon the bond, and as the only judgment sought against said witness was for any deficiency that might exist after a sale of the land, he was directly interested in the event of the action and incompetent to testify to any transaction with the deceased mortgagee and his evidence was properly excluded.
    Appeal from an order of the general term of the fifth judicial ■department, which reversed a judgment of the special term and granted a new trial.

      Horace McGuire, for app’lt; William N. Cogswell, for resp’t.

       Reversing 33 St. Rep., 548.

   Brown, J.

The complaint in this action alleged the execution and delivery by the respondent and her husband, George D. Lord, to one William Allen, of a joint bond bearing date September 6,. 1877, to secure the payment of the sum of fifty-five hundred dollars on January 1, 1890, with interest payable semi-annually, and as collateral security thereto a mortgage upon real estate situate-in the county of Monroe.

It alleged the death of Allen and the assignment of said bond and mortgage to the plaintiff by the executors of his last will and the failure upon the part of the defendants to pay the amount due thereon, and demanded the usual judgment of foreclosure and. sale of the mortgaged property, and that the defendants be adjudged to pay any deficiency that should remain after applying to the payment of the debt all the proceeds of the sale applicable thereto. The real estate mortgaged was owned by Mrs. Lord, and she alone defended the action.

The answer alleged that a part of the consideration of the bond and mortgage was the securing to said Allen of a sum of money won by him from George D. Lord at a game of poker.

That at the time of the execution of said bond and mortgage, the persons who would have been entitled to the real estate described in the mortgage, if said defendant had then died, were her four children who were named and all of whom were then living. It prayed that said bond and mortgage be declared void and can-celled, or if the court should decree that the same enured to the benefit of the respondent’s children, for such other relief as should be just.

This defense was based upon 1 R. S., 668, §§ 16 and 17, which so far material are as follows :

Sec. 16. “All things, in action, judgments, mortgages, conveyances, and every other security whatsoever, given or executed by any person where the whole or any part of the consideration of the same shall be any money * * * won by playing at any game whatsoever * * * shall be utterly void, except when such securities, conveyances or mortgages shall affect any real estate, when the same shall be void as to .the grantee therein so far only as hereinafter declared.”
Sec. 17. “ When any securities, mortgages or other conveyances executed for the whole or part of any consideration specified in the preceding section shall affect any real estate, they shall enure-for the sole benefit of such person as would be entitled to the said real estate if the grantor, or person encumbering them, had died immediately upon the execution of such instrument, and shall be deemed to be taken and held to and for the use of the person who-would be so entitled.”

Upon the trial, after the plaintiff had given proof sufficient to entitle him to the judgment asked for, the respondent called as a witness her husband, George D. Lord, and proved by him that at. the time of the execution of the bond and mortgage she had four children, and that they were all living at the time of the trial. The record then contains the following statement:

“ The defendant thereupon offered to prove by the witness, George D. Lord, that a part of the consideration of the said bond and mortgage, and at least the sum of seven hundred and fifty dollars thereof, was for money won by said William Allen of said George D. Lord by playing at a game of chance called poker,’ and that at least the sum of seven hundred and fifty dollars of the said bond and mortgage was for the payment and .security of said gambling debt, and no other or different. 'The plaintiff thereupon objected to the proving of such fact by witness George D. Lord, on the ground that the said George D. Lord is incompetent to testify to any conversation or transaction between him and said William Allen, deceased, by the provision •of § 829 of the Code of Civil Procedure. The objection was sustained by the court and the offer of the defendant excluded, to which ruling the defendant then and there duly excepted.”

The exception to this ruling of the court presents the question to be decided upon this appeal. The special term gave judgment for the plaintiff, which was reversed by the general term.

The appellant contends that the witness was interested in the result of the action, for the reason that her defeat upon the issue raised by the answer would have discharged the witness from all liability upon the bond, and, as the obligation was joint, this •contention is sound unless it is overcome by the application to the facts of the case of the statute heretofore quoted.

The respondent’s claim is twofold:

First. That the result of proving the facts pleaded in the •answer under the operation of the statute would be to work a transfer of the bond and mortgage from the plaintiff to the children of Mrs. Lord, and that the liability of the witness upon the bond would be intact and could be enforced against him by the parties into whose possession the statute would transfer it, and •that Mr. Lord was not interested in an event which determined nothing more than the ownership of the securities.

Second. That the evidence was competent for the purpose of proving that the mortgage did not belong to the plaintiff under the provision of the statute, irrespective as to who had title to the bond, and that if the facts had been proven the court might have •adjudged that the complaint, so far as it sought a foreclosure of the mortgage, should be dismissed, and either given judgment for the plaintiff upon the bond, or made the dismissal without prejudice to bring another action upon the bond.

This latter ground was not taken at the trial, as will appear from the offer which I have quoted. The ■ attention of the court was not called to the fact that the evidence was claimed to be admissible only to affect the demand for a foreclosure of the mortgage. The offer was general to prove illegality in the consideration of both bond and mortgage. That it was inadmissible as to the bond is apparent, and so far the ruling of the court was right, and I am inclined to think the appellant cannot now claim a limited application of the evidence as a ground of error.

But regarding the form of the offer as of no consequence, our opinion is that the statute cannot have such a construction as to make it operative to transfer to the mortgagor’s heirs title to the mortgage alone.

The statute against betting and gaming was enacted as a protectian of the public morals. The intention of the legislature was-to discourage and repress gambling in all its forms, and the law "under consideration having been enacted for the public good is to-be construed so as to accomplish so far as possible the suppression of the mischief against which it was directed. Ruckman v. Pitcher, 1 N. Y., 396; Storey v. Brennan, 15 id., 527.

The intention is that the offender against the laws prohibiting gambling is to be'punished by being deprived of any real estate mortgaged or conveyed to secure the gambling debt and that real estate so mortgaged or conveyed shall pass to the heirs of the offender. The statute saves the security or convejmnce for the single purpose of preserving the real estate to the heirs of the mortgagor or grantor. As to a mortgagee both bond and-mortgage-are void, but the mortgage is preserved as a medium to transfer the land to the mortgagor’s heirs.

. But such a result could be accomplished only through a foreclosure of the mortgage and it needs no argument to show that-the purpose of the statute would be defeated if the mortgage-should belong to one person and the- bond to another.

The learned counsel for the respondent takes two positions-which are absolutely inconsistent. He argues first that the bond and mortgage are to be regarded as a single security affecting real estate and both pass under the statute and can be enforced by the mortgagor’s heirs. That the witness was not pecuniarily interested in that result as his liability to pay the debt was not-thereby affected. Hence the evidence was admissible. His second proposition is, that the mortgage alone affects the land and that-the court could have severed the securities and dismissed the complaint so far as it sought a sale of the real estate. That under this construction the evidence was admissible as it did not affect the liability of the witness on the bond. The argument presented by the learned counsel in the first point is a complete answer to-his second proposition. I quote from his brief; “ The statute expressly states that the securities where they effect real estate-shall, immediately upon the execution thereof, be taken and held for the use of Mrs. Lord’s children.

“ In other words, the fact that a part of the consideration was-for a gambling debt works a transfer and assignment of the mortgage. I submit that that being so, to carry out the intent and purpose of the statute effectively it must be held that the bond,, which is a part of the same transaction, comes within the saving-grace of the statute, and inures for the benefit of the children of Mrs. Lord alike with the mortgage. If that is not so, then the statute is meaningless, and the object sought to be accomplished by the statute utterly fails. It cannot be claimed that in such a case as this the statute contemplated that the mortgage should belong to one person and the bond to another. The beneficial interest in the debt. is however included in the assignment of the mortgage, -although the terms of the assignment embrace the-mortgage alone. This would be the presumed intention of the-parties in all cases when the debt has not been already transferred to another. The mortgage being merely an incident of the debt cannot be assigned separately from it so as to give any beneficial interest. Jones on Mortgages, § 805. If then the intent of the statute was to confer the beneficial interest in the mortgage to the children of Mrs. Lord, as to which there is no question, the necessary effect must be that the bond, the evidence of the debt, must go with it.”

We concur in this reasoning, but we do not adopt the counsel’s conclusion that the bond absolutely passes to the mortgagor’s heirs, and such construction is not necessary to carry out the purposes of the statute. The bond is not of itself a security affecting real estate, and only so far as it is essential to give validity to the mortgage in the hands of the mortgagor’s heirs is it necessary to hold that it comes under the operation of the statute.

If the amount of the debt is less than the value of the real estate the bond to the whole amount would necessarily pass because the heirs would acquire such an interest in the real estate only as is equal to the amount of the debt attempted to be secured, and the practical operation of the statute in such case would lead simply to the foreclosure of the mortgage, a sale of the land and payment of the amount secured. But it would be otherwise in case the amount of the debt exceeded the value of the land. In such case the heirs acquiring no right to the bond except so far as it was necessary to support the mortgage, it, to the extent of any excess over the value of the land, would under the statute be “ utterly void,” and would be extinguished.

It follows that the result of proving the facts set out in the answer and which it was proposed to prove by the witness George Lord would be to confine the enforcement of the bond and mortgage to the land and destroy the personal liability of the obligors upon the bond, and as the only judgment sought against the witness was for any deficiency that might exist after a sale of the land, he was directly interested in the event of the action and incompetent to testify to any transaction with the deceased mortgagee, and his evidence was properly excluded.

The order of the general term should be reversed and the judgment of the special term affirmed.

All concur, except Bradley, J., not voting.


text:
    Susan Jefferson, Jr., et al., Resp’ts, v. The New York Elevated Railroad Company et al., App’lts.

      (Court of Appeals, Second Division,

      Filed April 26, 1892.)

    Railroad—Elevated—Evidence op damage to pee—Expert.
    Opinions of expert witnesses as to what premises abutting on an elevated railroad would have been worth if they were unafEected by the road and its operation are incompetent.
    Appeal from a judgment of the general term of the supreme court, in the first judicial department, affirming a judgment entered upon the decision of the court after a trial at special term
    Action to enjoin the defendants from maintaining and opw' an elevated railway in front of the premises belonging to the plaintiffs, known as No. 934 Ninth avenue, to recover the damages already sustained by reason of the construction and operation of said railway, and, in case the defendants are permitted to continue to operate the same, to compel them to pay the permanent damages sustained by the plaintiffs in consequence thereof.
    The judgment as entered awarded the sum of $2,000 for damages already sustained, with a permanent injunction against the further operation of the railroad; provided the defendants should not within a specified time tender to the plaintiffs for execution a conveyance of the “ easements ” found to have been taken, and upon the execution and delivery of the same pay them the sum of $4,000, besides interest.
    The premises in question are situated on the easterly side of Ninth avenue about the middle of the block between' Fifty-ninth and Sixtieth streets, and consist of a five-story apartment house, built of brick and brown stone. On the corner of Fifty-ninth stre'et is a station, but no part thereof is in front of the-plaintiffs’ property. There are no. columns in front of the house, and the nearest rail is thirty-six feet and six inches distant therefrom. The avenue is about 120 feet wide, and the elevated structure, which is fifteen and one-half feet high at its lowest part, occupies a space thirty-eight feet and four inches wide. The railway was constructed in 1878, and the house was erected two years thereafter. Prior to the building of the road, this lot and the neighboring lands were vacant.
    The lot cost $5,500 in 1864 or 1865, and the original cost of the building was $18,000, but it was subsequently altered and extended at an expense of $12,000. The two lower floors are adapted to store purposes and each of the other floors is divided into two suites of six rooms each. Only one room of each suite fronts toward the railway and the rest of the rooms are lighted wholly from the rear, sides and an air shaft The plaintiffs are now the sole owners of the property, but prior to October 17, 1885, they owned it in common with two other persons, whose claim for damages they acquired by assignment before the commencement of this action.
    Since the railroad was built there has been a decided increase in the value of real estate in the district where the premises in question are situated. Evidence was given tending to show that the present value of plaintiffs’ lot, without the building, is $17,000.

      ySamuel Blythe Rogers, for app’lts; Gliarles G. Bennett, for resp’ts.

       Reversing 33 St. Rep., 916.

   Vann, J.

Upon the trial of this action one Cody was called as a witness for the plaintiffs, and after testifying to his qualifications as an expert in estimating the value of real estate, and stating his judgment as to the rental value of the premises in question, just before certain alterations had been made therein, he was asked the following questions: “What, in your judgwould have been the fair rental value of those premises if they had not -been affected by the construction and operation of the elevated road ? What, in your judgment, would be the fair selling fee value of those same premises if they were not affected by this road and its operation? What would the fair .rental value be if they were unaffected by this road and its operation ? ” To each of these questions the defendants objected “ as incompetent, irrelevant, immaterial and conjectural; as not within the competency of this witness, and not within the competency of any witness; and as including all the damages due to the railroad and not all the damages due to the taking of the plaintiffs’ easement.” The objections were overruled and the defendants excepted. To the first question the witness answered: “It would be worth four or five dollars a month more.” He then added that in his judgment the present fee value of the premises, situated as they are, with the road in operation, is about $40,000.

In answer to the second question he said : “ $45,000. In my judgment the fair rental value of those premises as they are now to-day is, the store and basement, about $1,200 a year; the next floor, about $600 a year; the third floor, about $700; the fourth floor, $650, and the top floor $600.” His answer to the third question was as follows: “ The store and basement would be worth $1,500 a year; the next floor would be worth $700 a year; the next floor $800 a year and the fourth floor $720, $60 a month. The top floor would be worth as much as $720.”

Another expert witness for the plaintiffs was asked for his judgment as to the fee value of the premises if they were not affected by the railway and its operation and, subject to the same objection, he said from forty-seven to forty-eight thousand dollars. When asked as to the rental value, if the premises were unaffected by the railway and its operation, he answered, subject to the same objection, that it would bring at least seven or eight hundred dollars more.

In actions brought by abutting owners to restrain these defendants from operating or maintaining their elevated railroad, it has been held by this court that the opinion of an expert as to what would have been the value of the property affected, if the railway had not been built, is incompetent. Roberts case, 128 N. Y., 455; 40 St. Rep., 454; Doyle's case, 128 N. Y., 488; 40 St. Rep., 474; Gray case, 128 N. Y., 499, 508; 40 St. Rep., 478; Kernochan case, 130 N. Y., 651; S. C., 41 St. Rep., 266.

In this case professed experts were allowed to state what the plaintiff’s premises would be worth if they were not affected by the road and its operation, which is equivalent to stating the value of the property if the road had not been built The questions differ in form only, not in substance, from those recently adjudged incompetent- The questions and answers bring the same ideas before the mind in this case, except as to amounts, as in the cases cited.

We think that the opinions of witnesses as to what the premises in question would have been worth, if they were unaffected by the road and its operation, were incompetent under the rule established by this court in relation to the subject

The learned counsel for the plaintiffs criticizes the objections made by the defendants to this evidence as insufficient, because they do not suggest that the subject to which the questions relate is not one upon which expert evidence is admissible. Reference is made to the McGean case, 117 N. Y., 219; 27 St. Rep., 337, where the objection was based in part upon the ground that the witness was not competent to give an opinion and the court suggested that this might imply that opinions were competent on the subject. In this case, however, no such implication can arise, because the point was distinctly made in the objection that the question was not within the competency of this witness and not within the competency of any witness ;” just as in the Doyle case, supra, it was objected lhat 11 the question was not within the competency of this expert, or any expert.”' In both cases the question called for an opinion only and the objection challenged the competency of any witness to give an opinion upon the subject to which the- question related. In the Roberts case, supra, the corresponding question was objected to as hypothetical and incompetent, and in the Doyh case, supra, as hypothetical, speculative and incompetent.

In the Gray case, supra (p. 508), a somewhat similar question was objected to “ as not within the issue; as hypothetical and conjectural * * * and as incompetent, irrelevant and immaterial.” In the case now before us the questions were objected to on similar grounds, and to quite an extent on grounds identical with those in the authorities cited, and we think that the objections were sufficient to raise the point that was decided in those cases and to make them binding upon us in the decision of this. Conjecture and speculation are used in two of those cases as synonymous terms. Roberts case, 474; Gray case, 509.

It is further insisted that there was enough evidence, other than that objected to, to support the judgment and hence that the defendants have not been harmed.

Even if the testimony that was not objected to was sufficient to justify the result reached by the learned trial judge, it certainly would not compel it. There was evidence that would have justified a result more favorable to the defendants. As was said by the court in Foote v. Beecher, 78 N. Y., 155, 158, “ An error in receiving incompetent evidence, if properly excepted to, can only be disregarded when it can be seen that it did no harm. If the evidence is slight or irrelevant, or if without it the fact is conclusively established by other evidence, it may be disregarded because it could not have injured the other party.”

Even if the result would probably have been the same without the objectionable evidence as with it, as there was testimony that would have warranted a different conclusion, we - cannot say what weight the opinions erroneously received may have had. Starbird v. Barrons, 43 N. Y., 200.

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

All concur.


author: Parker, J.

text:
    Charles S. Hine, Resp’t, v. The Manhattan Railway Co. et al., App’lts.

      (Court of Appeals, Second Division,

      Filed April 26, 1892.)

    Railroad—Elevated—Evidence.
    In an action for damages against an elevated railroad, testimony by the plaintiff to the effect that he had previous to the building óf the railroad received certain oilers for the property is inadmissible and the reception of such evidence constitutes reversible error.
    Appeal from a judgment of the general term of the superior court of the city of Mew York, affirming a judgment of that court entered upon the decision of the court after trial at an equity term.
    The judgment awards to the plaintiff the sum of $8,824.92 damages, and contains an injunction restraining the defendants from the further maintenance and operation of their elevated railway in front of plaintiff’s premises, Mo. 13 Bowery, unless within the time fixed by the judgment they pay to the plaintiff the sum of $12,500.
    . The question discussed on this review relates to the admission in evidence of statements on the part of the plaintiff, that he had been offered certain prices, which he named, for his property before the construction of the elevated railroad.
    The following questions, among others, were asked by plaintiff’s counsel:
    Q. Before the elevated railroad was built, did you have any offers of parties who sought to buy the premises of you, and if so, what did they offer you for the property ?
    Counsel for the defendants objected to the questions as immaterial, incompetent and irrelevant; also, as not within the issue in this action.
    The court overruled the objection, and counsel for the defendants duly excepted.
    A. In 1871 or 1872, I do not recollect which, I was offered a bona fide cash offer of $60,000 for the property. I was then getting $5,700 a year rent for it. I was after that frequently offered $55,000; then I was getting $5,400 a year rent for it. I refused the offer. * * *
    Q. You understood that offer for this property to be a bona fide offer ?
    The same objection, ruling and exception.
    A. I understood it to be a bona fide offer.

      Brainard Tolies, for app’lts; William H. Arnoux, for resp’t.

       Reversing 33 St. Rep., 758.

   Parker, J.

The relief sought by plaintiff rendered it important that he should show the market value of the premises in controversy prior to the building of defendants’ railroad.

Part of the evidence introduced for that purpose consisted of his own testimony, to the effect that he had received certain offers for the property.

We agree with the general term that the court erred in receiving it.

It must be borne in mind that we are not considering the admissibility of an offer made in an open market, such as the Produce Exchange, for an article of recognized uniform character, constantly bought and sold in the market, and having a place in the daily reports of prices current, such as number one wheat, or corn, but that of an unaccepted offer for a piece of real estate having a market value it is true, but one not generally known in the market or to the public. Such market value may be shown by the testimony of competent witnesses, but not by an offer.

In the first place, the evidence adduced in this case is objectionable because it places before the court or jury an absent person’s declaration or opinion' as to value, while depriving the adverse party of the benefit of cross-examination.

The highest value at which an offer, standing alone, can be estimated is, that it represents the opinion of him who makes it as to the worth of the property. Nevertheless the assertion that he offered to .part with his money might give to such hearsay opinion more weight with a jury than an opinion given by a witness before them not thus supported. While notwithstanding his opinion was backed by a promise to pay money, which was not enforceable, he may not have been competent in a legal sense to express an opinion on the subject. If he was, other reasons may have prompted the offer than an expectation of actually becoming the purchaser, or of obtaining it at its market value.

But we pass to the objection that in such a case as we have under consideration offers may not be proven even by the party making them.

The general term of the fourth department had the question before it in Keller v. Paine, 34 Hun, 167, 177. And in discussing the question the court said: It has been intimated in some cases that offers are some evidence of value. But it is a class of evidence which it is much safer to reject than to receive. Its value ’ depends upon too many circumstances.

“ If evidence of offers is to be received, it will be important to know whether the offer was made in good faith, by a man of-good judgment, acquainted with the value of .the article and of sufficient ability to pay; alga whether the offer was cash, for credit, in exchange, and whether made with reference to the market value of the article or to supply a particular need or to gratify a fancy. Private offers can be multiplied to any extent for the purpose of a cause, and the bad faith in which they were made would be difficult to prove.”

The reasons thus assigned in support of the decision made we fully approve.

That decision has been followed in Leale v. Met. El. R. R. Co., 61 Hun, 613; 41 St. Rep., 904; Lawrence v. Met. El. R. Co., 15 Daly, 502; 29 St. Rep., 138.

The proposition has been asserted in Ross v. Met. El. R. Co., 29 St. Rep., 517; Kuh v. Met. El. R. Co., 31 id., 406.

It has also been applied to offers relating to personal property. Young v. Atwood, 5 Hun, 234; Linde v. Republic F. Ins. Co., 50 Supr. Ct., 362; Weld v. Reilly, 48 id., 531.

It is so held in other jurisdictions. Fowler v. Co. Com. of Middlesex, 6 Allen, 92-96; Whitney v. Thacher, 117 Mass., 523—527; Wood v. Firemen's F. Ins. Co., 126 id., 316-319; Louisville, F. O. & Texas R. R. Co. v. Ryan, 64 Miss., 399—404; St. Joseph & Denver R. R. Co. v. Orr, 8 Kansas, 419-424.

In the few cases which may be found holding the other way, the question does not seem to have received much consideration from the courts rendering the decisions, and the absence of argument in their support renders unnecessary any special reference to them.

Respondent’s counsel insists that Harrison v. Glover, 72 N. Y., 451, is an authority against the position here approved, but we do not so read it. There the plaintiff employed the defendants to sell blankets at a price not less than the manufacturing corporation of D. & Co. marketed blankets of their manufacture. The question was, What did the parties intend "by this contract ? Did they intend to make the actual sales by D. & Co. of their blankets, the test, or the price at which they held .them ?

Judge Andrews said: “ It was competent for the parties to provide that the price of D. & Co.’s blankets as ascertained by the actual sales only should govern the price of the plaintiff’s blankets. But the parties did not understand this to be the meaning of the contract; ” and this statement is followed by an argument on the part of the learned judge to show that the contract which the parties intended to make, and did, was that the defendant should be governed by sales or by ascertained bona fide offers to sell.

The discussion had reference solely to the test which the parties had established by their contract, and was not intended to, and does not affect the question before us.

While we agree with the general term in the view expressed touching the question so far considered, we cannot endorse the position taken that a reversal should not be had because such testimony did not affect the result. We do not well see how this court can ascertain or determine what weight it had. The question of value was sharply contested, and if we cannot say that this testimony did not influence the decision of the court, the appellant is entitled to have its admission declared to constitute reversible error.

The presumption necessarily arises from the situation presented by the evidence, and the decision of the court, that the evidence was considered, and it is strengthened by the fact that the trial court, after passing on the admissibility of the testimony, and listening to the answer of the witness, asked the plaintiff how long before the building of the road the offer of $55,000 was made?

The judgment should be reversed.

Judgment reversed, and new trial granted, costs to abide event

All concur.


author: Bookstaver, J.

text:
    James Mack, Resp’t, v. John Colleran, Impl’d, App’lt.

      (New York Common Pleas, General Term,

      Filed March 7, 1892.)

    Mechanics’ lien—Appbopbiation op payments.
    Moneys received under a building contract must be applied on such contract, and cannot be diverted to the payment of other debts.
    Appeal from a judgment of tlie general term of the city court affirming a judgment rendered at trial term by the court without a' jury. _
    _ William F. Pandel, for app'lt; Phillips & Avery, for resp’t.
   Bookstaver, J.

This action was brought to foreclose a mechanic’s lien against two buildings known as Nos. 128 and 180 West Thirty-first street, in this city, belonging to the defendant Constantine Y. King, who had discharged the lien by giving a bond. King as owner made a contract with the appellant Colleran, whereby Colleran undertook to erect the buildings in question; he sublet the contract for such erection, with the exception of the plumbing work, to Robert H. Andruss; Andruss made sub-contracts with various mechanics, including one for the bluestone with the respondent. After proceeding with the work for some time, Andruss abandoned it before the third payment became due according to the terms of the contract. At that time respondent had done work and furnished materials to the amount of $1,217, as found by the trial judge. It is conceded by all the parties that the respondent before filing his lien had received of the moneys paid to Colleran on this job, by the owner, the sum of $1,114, part of which had been paid by Colleran, the principal contractor, and part by Andruss, the first sub-contractor. Five hundred dollars of the monej's received from Andruss was applied by the respondent (with consent of the former, as it is claimed), upon an old debt due him from Andruss arising on other transactions entirely disconnected with the work in question; there is no evidence however that the principal contractor knew of this appropriation until after Andruss stopped work, and when it came to his knowledge he objected to such appropriation and claimed that it should be applied to the payment for the work done by the respondent upon the buildings in question, as appears by the testimony of the respondent himself. The appellant Colleran in his answer claimed that this $500 was paid on account of the work done by the respondent, and maintained this position on the trial. But the learned trial judge .held that the respondent had the right to apply it as he did, and refused to allow it as a payment upon the contract made by the respondent with Andruss.

This raises a novel question, and that is whether a contractor may appropriate moneys' received under a building contract to the payment of an old debt, or must apply it under the contract under which he does the work.

That he may apply it as was done in this case is supported with much ingenuity by the respondent. It is quite true that until a mechanic files his lien he is only a general creditor of the owner or principal contractor. Payne v. Wilson, 74 N. Y., 355. It is also true that where payments are made under the law merchant or upon an open account, etc., the creditor, in the absence of a special agreement, may apply the money received upon the earlier debt, and indeed, if he does not, the law will so apply it for him. It was contended on the argument that the money received was like any other money, and might be applied on any •debt which the sub-contractor saw fit.

This leaves out of view entirely the scheme and object of the .Mechanics’ Lien Act. It has been uniformly held that moneys ■due or to grow due from the owner on a building contract constitute a fund to which the liens of sub-contractors attach when filed in conformity with the statute. To support this, it is only neces.sary to refer to some of the later decisions on that subject. Crane v. Genin, 60 N. Y., 127; Payne v. Wilson, supra; Post v. Campbell, 83 N. Y., 282; Gibson v. Lenane, 94 id., 183; Larkin v. McMullin, 120 id., 206; 30 St. Rep., 902.

Most of the cases last cited are also authority for holding that this fund can only be diverted from its object by bona fide payments made by the owner in accordance with the terms of his ■contract. Consequently it has been held that as between the ■owner and one who has furnished labor or materials to the contractor, the owner can plead only damages growing out of the original contract' through the fault or negligence either' o£ the ■contractor or subcontractor, abandonment of the contract, defective work and the like. Cheney v. Troy Hospital Ass’n, 65 N.Y., 282; Miller v. Moore, 1 E. D. Smith, 739; Gourdier v. Thorp, id., 698; Develin v. Mack, 2 Daly, 100.

A general indebtedness cannot be set off as against a mechanic by parties standing between him and the owner; Hagan v. American, etc., Soc., 14 Daly, 131; 6 St. Rep., 212; Hoyt v. Miner, 7 Hill, 525; Develin v. Mack, supra; Bullock v. Horn, 5 Western Rep., 198. In the latter case it was held that where a mechanic who, under the employment of a contractor and with the knowledge of the owner, had performed 'labor upon the construction of .a building, had taken the necessary steps to obtain a lien upon the premises, and brought his action against the owner to recover the amount due and have the samé declared a lien, such ■owner could not be allowed to set off a claim against the contractor not growing out of the contract, acquired by him after the labor was performed, although such claim was acquired before ■notice that the mechanic’s,demand had not been paid. To such .an extent have the courts gone to preserve the fund for the payment of the material men and laborers.

And in Stevens v. Reynolds, 27 St. Rep., 497, where a material man had filed a lien for material furnished a contractor, and after-wards the contractor gave to another material man who had also furnished material an order on the owner for a sum in excess of that due him for the material furnished, the excess being intended .as payment on another debt,- it was held that the order was good only for the amount actually due for the material furnished upon the work against which it was drawn. This was undoubtedly equitable in that case, but it may be questioned whether the order was valid f'or any amount. At any rate if is authority for holding that the fund cannot be diverted for the payment of another debt.

But again, the owner is only liable to the contractor and subcontractors for the amount of the contract; he cannot be compelled to pay more. Laws 1885, chap. 342, § 1; Larkin v. McMullin, supra. 'The principal contractor is only bound to pay the aggregate amount of his sub-contracts, according to their terms. Hagan v. Amer., etc., Soc., supra; French v. Bauer, 16 Daly, 309; 32 St. Rep., 326. The intent of the statute with relation to the sub contractor is that he should be subrogated to the rights of the contractor with respect to the funds due or to become due under the-contract. Herbert v. Herbert, 57 How. Pr., 333; Schneider v. Hobein, 41 id., 232; Hofgesang v. Meyer, 2 Abb. N. C., 111; Cheney v. Troy Hospital, 65 N.Y., 282; McMillan v. Seneca, etc., 5 Hun, 12.

And the lien of the sub-contractor, in view of- the fact that he i's merely subrogated to the contractor’s rights, attaches only to the moneys due or to become due on the contract with the owner. Crane v. Genin, 60 N. Y., 127; Gibson v. Lenane, supra; Post v. Campbell, supra. It is, therefore, clear that in this case Andruss.. even had he completed the work, could not have compelled Colleran to have paid him the $1,114 he had already paid for the plaintiff’s work; and if Andruss could not, it is difficult to see how the plaintiff can.

By the decision of the learned trial judge, however, he has only been credited with a payment of $614, and according to the judgment in this case would be compelled to pay $500 more than the, contract price for the work done by the respondent. This is-manifestly unjust. We, therefore, conclude that the money due-under building contracts cannot be diverted to the payment o£ debts not arising under such contracts.

The erroneous decision of the court below in regard to this, question led it to hold that the respondent was not bound to complete his contract when requested to do so by Colleran until he-had been paid over again for a part of his work, which was also-error.

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

Bischoff and Pryor, JJ., concur.


text:
    James Edward Smith, App’lt, v. Adolph Moonelis et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed March 7, 1892.)

    Bab—Judgment.
    To make a former action a bar, the circumstances must be suck that the-plaintiff might have recovered in the first action for the cause of action-, alleged in the second.
    Appeals from six judgments rendered in the district court of" the city of New York for the seventh judicial district

      Johnston & Johnston, for app’lt; Wise & TJchtenstein, for resp’ts:
   Bookstaver, J.

Before these actions were tried, an earlier action had been brought in the same court and tried by the justice with a jury, who found in favor of the plaintiff. On this verdict a judgment was entered from which an appeal was taken to this court, which was affirmed, 27 St. Rep., 988, because, as we thought, the law and the questions of fact had been fairly presented to the jury and their verdict was sustained by the evidence. The facts in that action were the same as in these, and the same testimony was used on the trial of these actions. The justice, however, rendered judgment in favor of defendants in each action on the ground that the contract was one for hiring or employment, and was indivisible, and that it had been entirely broken when the.first action was brought, and, consequently, that the former judgment was a bar to the subsequent actions.

This raises the sole question to be determined upon these appeals. The judgment in the first action conclusively established the making of a verbal contract by the defendants to pay the plaintiff the sum of ten dollars a week until returns were had from his inventions, and the defendants are estopped by it from denying the contract or its terms. Ibbotson v. Sherman, 10 J. & S., 477; Humphreys v. N. Y., L. E. & W. R. R. Co., 56 Hun, 637; 32 St. Rep., 194. It also conclusively established the fact .that this verbal contract was riot embraced in and did not form a part of the written contract made about the same time, and was not superseded by the subsequent contract or agreement between the parties, and that the discharge of the plaintiff from the employment of the defendants before the commencement of the first action did not relieve the latter from the obligations of the verbal contract, for all these questions were litigated in that action and decided in plaintiff’s favor. It also conclusively established the validity of that contract.

How, what was that contract? Respondents contend it was a contract for hiring, but the evidence we think does not sustain .this contention. Ho services were rendered during the week for which-the instalment sued on in the first action was due, nor were any rendered in the subsequent weeks for which these actions are brought. The first, and, we think, the subsequent actions, were brought to recover instalments as they fell due upon a contract agreeing to pay such instalments for plaintiff’s sustenance during a certain time. Consequently they are not actions for wages. Hor yet is the contract like the one in Schell v. Plumb, 55 N. Y., 592, which was an agreement by one party to support another during life without providing for specific payments at specific periods. Of course in that case the contract was indivisible and upon breach the whole damages could be recovered, and a recovery of a part would be a bar to a further recovery. On the trial of these actions it was conceded that if the contract existed and if it was broken, the actions were brought to recover the sums which under the contract had it not been broken would have been payable before the commencement of the several actions, and would have been for moneys accruing from time to time before -the commencement of the several actions. And as before shown, it iá conclusively established the contract existed and that it was valid, and it was proved to have been broken. It, therefore, follows the judgments should have been for the-plaintiff. In Lorillard v. Clyde, 33 St. Rep., 303, it was said by the court of appeals: “ It is doubtless true that each default in payment of money falling due upon a contract payable in instalments may be the subject of a separate, independent suit provided it is brought before the next instalment becomes due, but each action should include any instalment due when it is commenced unless a suit is pending for the recovery thereof.” We do not see how the cases under consideration differ in principle from the ordinary actions on successive instalments of rent brought as-they fall due.

To make a former action a bar, the circumstances must be such, that the plaintiff might have recovered in the first action for the-cause of action alleged in the second. Stowell v. Chamberlain, 60 N. Y., 272; Miller v. Manice, 6 Hill, 114; Shook v. Lyon, 16 Daly, 420; 34 St. Rep., 19. The difference between an action for wages and one for the breach of the contract for employment is-pointed out in Elliott v. Miller, 43 St. Rep., 536.

The fact that the plaintiff has brought two other actions in this court for a wholly different purpose, to wit, to cancel certain written agreements is not properly before us; and even if it were, we would not on these appeals consider the pleadings only in. such actions.

The several judgments should therefore be reversed and new trials ordered, with the costs of these appeals to appellant.

Bischofe, J., concur.


author: Daly, Ch. J.

text:
    Henry A. W. Wood, Resp’t, v. Edward Gordon, App’lt.

      (New York Common Pleas, General Term,

      Filed March 7, 1892.)

    1. Landlord and tenant—Holding over.
    Defendant, after signing a lease under seal, objected to the term therein, stated, lli months instead of 12$ months as agreed between the landlord’s, agent and himself; the agent then called his attention to the back of the-lease on which was endorsed, “Term twelve and one-half months. Begins September 15, 1889. Terminates September 1, 1890. Annual rent, $600,” and said : “ This is simply an agreement which forces you to keep-this flat for not loss than one year,” Defendant replied: “Then I will, take the lease for twelve months and a half,” and the agent answered, “ Yes, that is all right.” Held, insufficient to relieve defendant from liability for another term of lli months by reason of holding over.
    3 Same—Excuse.
    The conversation between defendant and the agent was insufficient to-establish a lease for 13J months, the landlord having signed the lease, and no authority in the agent to change its terms being shown, and was also-insufficient to excuse holding over beyond the lli months.
    Appeal from a judgment of the general term of the city court,, affirming a judgment of the trial term, entered upon verdict directed by the court, in plaintiff’s favor for fifty dollars and interest from October 1, 1890. The action was brought to recover rent of an apartment in the premises 958 Ninth avenue for the: month of October, 1890, upon an implied agreement of leasing for one year, arising from the tenants holding over, after the expiration of a previous term,' under a written lease from September 15, 1889, to September 1, 1890. The answer set up a hiring for the term of twelve and a half months, beginning September 15, 1889, and ending September 80, 1890 ; occupation until the last named date and payment of the rent in full up to that date ; also surrender and acceptance pursuant to notice; and finally representation by the plaintiff’s attorney who drew - the written lease, to the defendant, at the time of the signing thereof, that it was a lease for twelve and a half months, acceptance thereof, occupation and payment of rent upon such assurance; and a prayer for judgment, modifying the writing so as to express the real agreement of the parties.

      James P. Campbell, for app’lt; Charles De Hart Brower, for resp’t.

       Affirming 38 St. Rep., 455.

   Daly, Ch. J.

The plaintiff proved a lease under seal executed by both parties", by which defendant hired from him the premises. in question, from September 15, 1889, to September 1, 1890, a period of eleven months and a half; and that defendant remained in occupation of the premises until September 30, 1890; and claimed that by such holding over an agreement to hold for a year until September 1, 1891, upon the terms of the original lease, was implied. This claim was sustained and a recovery of $50 rent for the month of October, 1890, was allowed, the rent secured by the original lease being $50 a month, payable in advance, on the 1st day of the month.

The objections of the defendant to this recovery may bel summed up as follows :

First. That evidence was offered by him to show that the original hiring was for twelve and a half months and did not expire until October 1, 1890, upon which he was not allowed to go to the jury.

Second. That even if there were a holding over, the- questions whether it was wrongful or intentional should have been submitted to the j ary.

Third. That if, according to the plaintiff’s contention, the original letting was for eleven months and a half, a continuance of the tenancy for a year, or for any term, will not be implied.

The defendant did not prove a different hiring from that, specified in the sealed lease, and there was nothing to submit to the jury under that defense or the claim for a modification of the written instrument Taking his own testimony as true, it merely appeared that he claimed he had agreed with the janitor of the building for a lease for one year from September 15th to. September 15th; that when he went to the plaintiff’s attorney to sign the lease which had been prepared he found it made out to run from August 15, 1889, to September 15, 1890 ;■ that he declined to take the premises from August, as he had paid his rent where-he was then living to September 15th, and would only take from. ■September 15th • to September 15th; that the attorney promised to alter it; that he called on a subsequent day to sign it; that it 'was then already executed by the plaintiff; that he signed it without looking at it; that after some conversation as to when the half month’s rent was to be paid, he asked the attorney if his 'term was still twelve and a half months, to which the attorney ■answered yes; that he then picked up the lease and looked at it, .and said it was not so stated there; that the attorney called his attention to the back of the lease and said it was stated there; • (on the lease' was endorsed on four separate lines the following: “ Term twelve and one-half months; begins September 15, 1889, terminates September 1, 1890; annual rent, $600); that the ¡attorney said to him, “ This is simply an agreement which forces you to keep this flat for not less than one year, as Mr. Wood will aot let those flats, and has not let them, for less than one year ”; that after further conversation defendant said, “ Then I will take the lease for twelve months and a half ”; and the attorney replied, “Yes, that is all right.” The plaintiff was not present.at •either of these interviews.

It thus appears that after the defendant had signed the paper, ¡"and looked at its contents and knew what they were, he retained it, relying upon the assurance of the plaintiff’s attorney that its legal effect was different from what its plain provisions denoted. "This will not relieve him from the contract, clearly expressed in -writing, without ambiguity, to which he bad put bis hand, and which stated that the premises were let to him from September 15, 1889, to September 1, 1890. Even if he had not read the paper the case would be the same; having the means at hand of •ascertaining what the contract contained, he had no light to rely upon the representations of the agent of the other party as to its -contents. Hill v. S., B. & N. Y. R. R. Co., 73 N. Y., 351. There is no precedent for granting relief to a party for a false affirmation -concerning the contents of a written instrument when that instrument is completely within his reach. Starr v. Bennett, 5 Hill, 303. If it be claimed that plaintiff’s attorney made any different contract than that which had been already signed and sealed by his •client and the other party, and delivered to the latter, then no -authority in him to do so was shown, much less to make a contract which would have been void as a paroi lease for more than a year. There was, therefore, no contract proved, except that expressed in the written lease, and no basis for a modification of that instrument

As the time expired September 1,1890, and defendant remained in the premises until September 30, there was a holding over. •“ The law is too well settled that where a tenant holds over after the expiration of his term, the law will imply an agreement to hold for a year upon the terms of the prior lease.” Schuyler v. Smith, 51 N. Y., 309. But such holding over must be intentional and wrongful, and the case may, and often does, arise in -which it is a question of fact upon the evidence whether the holding over is of that character, and in such a case the case must be ¡submitted to the jury. It was so held where a term expired on the first of May, and the tenant had not removed all his machinery,, which was.very heavy, from the premises by the twenty-sixth of the month, owing to delays caused by a previous fire and negotiations for a new lease, which were ended by the landlord giving him notice to quit on the eighth of the month, followed by his. efforts to do so, Smith v Allt, 7 Daly, 492; and where the term expired on May first and the tenant removed before that date, but. left a stove and some rubbish on the premises, and" the key was not tendered until May second, this was held not to constitute a.. holding over, because excusable and unavoidable under the circumstances of the case, McCabe v. Evers, 30 St. Rep., 833; and. so where the term expired February second and defendant removed on that day all but a desk and safe, which were not removed until the next day. Manly v. Clemens, 39 St. Rep., 199.

The case before us presents no features showing the holding over to be unintentional or excusable. On the contrary, the defendant remained in possession with the knowledge that, by his-written lease, his term expired a month before he chose to leave.. It will not do to admit as excuse his assertion of right to so remain under the verbal understanding he claims to have had for a longer term; for this would give him all the advantage he seeks-by a denial of his actual contract. His real position in law was-that of a trespasser, and it is this tortious holding which gives the? plaintiff the option to treat him as a tenant for another term. There was no question to submit to, the jury under this defense.

The question remains: For what term does the law imply a continuation of the original tenancy? The appellant claims that a renewal upon the original terms is never implied where the original letting is for less than one year. The cases in this state-in which the doctrine is announced all present the feature of an original letting for one or more years, or at an annual rental, and in some instances the rule is narrowed in the statement of it, as in-Conway v. Starkweather, 1 Denio, 114, per Bronson, J.: “ When a tenant under a demise for a year or more holds over after the end-of his term without any new agreement with the landlord, he maybe treated as a tenant from year to year, and in all other respects, as holding upon the terms of the original leasein others, it is-stated more broadly, as in Abeel v. Radcliff, 15 Johns., 507, per Spencer, J.: “ Where a tenant holds over without any new stipulation between the parties, an implication arises that there is a tacit-consent on both sides that the tenant shall hold from year to year at the former or first rent”

In Laughran v. Smith, 75 N. Y., 210, the rule is stated by Andrews, J.: “ When a tenant enters for a year, and holds over after the expiration of the term, the law from the continuance of the possession implies.a contract on the part of the tenant to renew the tenancy for another year on the terms of the original letting.”1 In that case, as in all those quoted, a yearly letting was intended arid actually effected, and the rule is stated with reference to the facts of the case.

But a like rule prevails in tenancies for less than a year. Thus-; we know that a tenant for a month holding over may be treated! -as a tenant for another month and the reason of the rule applies to a tenancy for any fixed period or term less than a year, and it has been so held. “Where the tenant under alease for less than a year (in this case eight months) holds over with the landlord’s ■consent, express or implied, holding fora term of equal length on the same conditions is presumed.” Bollenbacker v. Fritts, 98 Ind., 50. To the same effect are Prickett v. Ritter, 16 Ill., 96; Field v. Herrick, 14 Ill. App., 181; Clapp v. Noble, 84 Ill., 62; Blumenberg v. Myres, 32 Cal., 93-6. In Hurd v. Whitsett, 4 Colo., 77, it is said “ Where the term is for a shorter period than a year, according to the current of authorities, both English and American, the holding over is implied for a like term.” The lease was for less than a year in that case: and the same rule was applied in Bright v. McOuat, 40 Ind., 521, where the lease was for six months, and the general rule is thus stated in the American and English Enc. of Law (vol. 12, p. 758 q.) “Where a tenant, with the consent of :the landlord, express or implied, holds over his term, the law implies a continuation of the original tenancy upon the same terms ■ and conditions.”

There seems, therefore, to be sufficient authority, as well as sound .reasons, for holding that the defendant in this case by wrongful^ holding over became, at the option of the landlord, this plaintiff, -a tenant of the premises for another term of the same length for which the premises were demised by the original lease, viz; eleven .months and a half, and the plaintiff upon the pleadings and proof was entitled to a direction in his favor. The complaint sets out ••a claim for a renewal of one year, but this is a statement of a conclusion and not of a fact; the facts pleaded were sufficient to ■constitute a cause of action and the proof sustained the pleading.

The exceptions to the exclusion of the defendant’s testimony as to his transactions with the plaintiff’s attorney present no ground for reversal, for the error to which they point was subsequently corrected by the admission of his testimony as to all such transactions.

The judgment must be affirmed, with costs.

Bischoff, J., concurs.


text:
    Charles R. Ellison, Resp’t, v. Eunice M. Sessions, App’lt.

      (New York Common Pleas, General Term,

      Filed March 7, 1892.)

    1. Married women—Physician’s services—Liability for.
    In an action for services as a physician rendered to defendant, a married woman, there was evidence that the services were rendered by plaintiff pn her declaration that she was worth enough to pay him if he attended her.. Hid, that the request to charge that defendant acted as her husband's agent in procuring plaintiff’s services was properly refused.
    .3. Same—Existence of separate estate—Evidence.
    In such case it w-a shown that defendant declared to plaintiff that she owned a team of horses and carriages, and was worth enough to pay him her account, and that it was on the strength of such declarations that he attended her. Held, sufficient to show that defendant had a separate estate and to sustain a verdict for plaintiff.

      Appeal by defendant from a judgment of the general term of the city court, affirming a judgment in favor of the plaintiff entered upon the verdict of a jury for $293.92.
    The action was for services as a physician rendered to defend.ant, a married woman, in the year 1877 and afterwards. The defense was a general denial, coverture and the statute of limitations. The plaintiff recovered the full amount. The defendant moved for a new trial, which was denied, and the order denying such .motion was affirmed by the general term.

      Wager & Acker, for app’lt; J. J. Thomasson, for resp't.
   Daly, Ch. J.

The appeal to this court being from the judg■ment alone, questions of law only presented by. exceptions duly "taken can be considered. There was evidence on which the jury could find that the employment of the plaintiff by defendant upon the pledge of her individual credit took place prior to the rendition of all the services for which this action was brought. There was nevertheless room for question upon this point growing out •of the fact that this arrangement was made concededly in view of the failure in business of the defendant’s husband, and such failure took place according to the testimony of the husband in 1878. But that there was such a contract after the failure the jury were •amply justified in finding, and the dispute as to whether it was in 1877 or afterwards could only affect the liability for the services rendered in that year.

But defendant did not raise that question upon the trial. His motion to dismiss at the close of plaintiff’s case, and at the close •of the whole testimony, was directed to the entire cause of action •and was properly denied, because the plaintiff was entitled to recover at least for services he rendered in 1878, and subsequent yearg. Nor was the question raised by any exception to the •charge or by any request for instruction to the jury." The court •did charge at defendant’s request that a promise subsequent to the rendition of the services would be void, but there was no request that the jury must disallow for services rendered in 1877. The question whether the promise was made before all the services were rendered was left to the jury without objection, and for that reason the error, if any, cannot be now reviewed.

The verdict cannot be disturbed upon the other points made by appellant. There was evidence that she had a separate estate when the contract was made. It is to be found in her declaration to the plaintiff that she owned a team of horses and carriages, and was worth enough to pay him her account, and it was upon the strength of this representation that he attended her. When she was examined as a witness she denied at first that she ever said that she had a separate estate, but afterwards admitted that she might have told the plaintiff that her husband gave hér two horses, and subsequently testified that she presumed she did tell the plaintiff that she owned them. If, as appellant claims, the •court erred in instructing the jury that it made no difference whether the defendant had a separate estate or not (although "there was no instruction in those words) yet ■ defendant took no exception to the instruction as made, and did not ask for any charge, as to the law on that subject.

There was no error in refusing defendant’s request for instruction that the legal inference is that the defendant acted as agent of her husband in sending for or applying for the services of a physician. Such an instruction would be proper in the absence of evidence of an express agreement by the wife to charge her separate estate for the services. In the form in which the request was made it would have misled the jury into concluding that upon the facts in the case the legal inference still was that the wife acted" as agent in sending for the plaintiff, and for that reason it was properly denied.

The argument .of appellant based upon the facts in the case which tend to discredit the plaintiff as a witness on his own behalf was proper to address to the general term of the city court, on the appeal from the order refusing a new trial, but cannot be considered here. There was no exception by defendant to certain, leading questions put by the court to the witness, and in the absence of such exception we cannot consider the effect of such questions.

The judgment must be affirmed, with costs.

Bischoff, J., concurs.