author: Brady, J.

text:
    The Mayor, etc., of New York, App’lt, v. The Commissioners of Emigration, Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

      1. Emigration — Commissioners of, not liable to city for care of EMIGRANTS SUFFERING FROM CONTAGIOUS DISEASES.
    No action can be maintained, in the present condition oi state and national legislation, by the city of New York, against the commissioners of emigration, for the expenses of the city in caring for emigrants who arrive at its port suffering from contagious diseases.
    2. Same.
    There being no funds in the hands of the commissioners for such a purpose, and no method of obtaining any except by favor of the secretary of the "United States treasury, no ground of action is shown.
    3. Same—Laws 1882, Ch. 145.
    Under the decision of the supreme court of the United States, Ch. 145, Laws of 1882, cannot be enforced, and no contract made thereunder would be valid.
    Appeal from an interlocutory judgment sustaining defendant’s demurrer to the complaint herein.
    The complaint alleges that it was the duty of the defendants to ■care for and maintain immigrants arriving at the port of New York suffering from small pox and other infectious, pestilential or contagious disease, or to provide for their care and maintenance for and during such times as might be necessary for the protection of the public health.'
    It is further alleged that certain immigrants suffering from .small pox and other infectious, pestilential or contagious disease did arrive at the port of New York during certain times specified in a bill of particulars annexed to said complaint and made a part thereof, and that by reason of the neglect or refusal of said defendants to care for and maintain said immigrants arriving as aforesaid, or to provide for their care and maintenance, the plainiffs were compelled, in order to protect the public health, to care for and maintain, and did care for and maintain, in hospitals belonging to and supported to by said plaintiffs said immigrants arriving at the port of New York suffering from small pox and other infectious, pestilential or contagious diseases, and were compelled to render, and did render, work, labor and services in connection therewith, a bill of particulars of which items of work, labor and services, and the dates thereto, is annexed to said complaint and forms a part thereof.

      That the fair and reasonable value of the work, labor and services rendered for six years last past amounts, in the aggregate, to $3,861; that no part of said sum has been paid, although payment has been duly demanded.
    To the complaint' a demurrer was interposed, as hereinbefore, stated.
    The demurrer was sustained by Judge Ingraham, an order and interlocutory judgment was entered, from which this appeal is taken..

      Edward H. Hawke, Jr., for app’lt; I. H. Maynard, for resp’ts.
   Brady, J.

From May, 1847, to March, 1876, the legislature-of this state endeavored to provide against the expense of caring for alien passengers arriving at this port from foreign countries; and although the history of that legislation might be interesting and instructive, it is not necessary to mention it in detail. The system established by it was put in operation and continued for many years, and indeed until the supreme court of the United States rendered a decision in the case of Henderson v. The Mayor, to be found reported, 92 U. S., 259, declaring such legislation unconstitutional and void. As a result of efforts made by the commissioners of emigration, who were impressed with the grave consequences which must ensue from that decision, the legislature on application, upon the 29th of April, 1876, adopted the following resolution:

Resolved, That the commissioners of emigration are hereby instructed to call the attention of the congress of the United States to the present condition of the emigration laws, resulting from the decision of the supreme court of the United States, declaring the state laws on that subject unconstitutional and void, and to impress upon congress the necessity for speedy national legislation in regard thereto, and the said commissioners to take such steps as in their judgment may be proper to secure such legislation.”

And that was followed in August, 1882, by the passage of an< act of congress to regulate immigration, which imposes upon the owners of steam or sailing vessels who shall bring passengers from a foreign port into a port of the United States a duty of fifty cents for every such passenger not a citizen. U. S. Stat, at Large, vol. 22, p. 214. This was declared to be a valid exercise of the power to regulate commerce with foreign nations. Head money Cases, 112 U. S., 580.

The act just mentioned imposes upon the secretary of the treasury the duty of superintending and of executing its provisions, with power to enter into contracts with state commissioners-to take charge of the local affairs of emigrants in the ports within the state and to provide for the superintendence and relief of such emigrants therein landing as might fall into distress and need public aid. The purpose of the act, it was said in the Head money cases by the learned justice delivering the opinion, “ was humane, highly beneficial to the pool and helpless immigrant and essential to the protection of the people in whose midst they were deposited.”

In addition to this, the legislature of this state passed an act in 1882, chap. 145 Laws pf that year, providing means for raising a fund to be used by the commissioners of emigration in caring for and maintaining alien passengers.

The act of congress, it may be observed here, provides for the distribution of the sums received under its jirovisions among the different states, declaring, however, that no greater sum shall be expended at any port than has been collected thereat.

The act of this state referred to is as follows:

“ Section 1. In order to save the state from the expense of the inspection and care of alien passengers, the commissioners of emigration are hereby authorized to contract with the carriers of emigrants by vessel to the port of New York, for periods not exceeding five years at a time, to receive not less than fifty cents, nor more than one dollar for each alien passenger so brought for such inspection and care, which payments, when made, shall be in- lieu of any tax by the state for the inspection and care of such passengers.”

It will be observed that the commissioners of emigration were by the act authorized to contract with the carriers of emigrants by vessel to the port of New York for periods not exceeding five years at a time, to receive not less than fifty cents nor more than one dollar for each alien passenger so brought. But the difficulty with the beneficial' use of the powers conferred by this act arises from the fact that it cannot be enforced in view of the decisions to which reference has been made, and by which the whole subject is declared to be solely within the jurisdiction of the United States in congress assembled.

The only fund, therefore, which is accessible is that which should be received from the secretary of the treasury in the distribution of the sums received under the act of Congress, passed in 1882, and as to which there is no allegation in the complaint. Nor is there any allegation that any contract had been made under the provisions of the act of 1882, passed by the legislature of this state, and, therefore, there is no existing fund out of which the defendants could make payment to the plaintiff for any expenses to which it has been subjected in the care of emigrants, and which should be reimbursed by the defendants, if they were in financial condition to do so. The remedy would seem to be (if such an application has not already been made) to require the board of emigration to apply for its proportion of the fund, to be distributed, as already stated, by the secretary of the treasury.

All the obligations imposed upon the defendants are necessarily based upon the proposition that the various acts of the legislature referred to conferring the power to raise a fund necessary for the purpose would be operative, and in that manner provide for any contingent expenses growing out of the subject.

But this, as we have seen, has not been verified, and the defendants have, therefore, no fund responsive to the plaintiff’s claim, and no power to gather it, except upon application to the secretary of the treasury, which might or might not be successful.

The judgment should, therefore, be affirmed.

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


source: Caselaw Access Project

author: Bischoff, J.

license: Public Domain

text:
    George H. Toop et al., Resp’ts, v. The Mayor, etc., of New York, App’lt.

      (New York Common Pleas, General Term,

      Filed February 2, 1891.)

    1. Municipal corporations—Contract—Pleading.
    In an action upon a contract made with the city, an admission in the-answer that certain work was done entitles the plaintiff to at least nominal damages, and hence a dismissal would he improper.
    2. Same—Assignment of contract—Stipulation.
    The contract was assigned to plaintiffs, who were sureties of the contractor, with the consent of the city, but such consent was not according. to the requirements of the contract. On the trial a stipulation was given that the case should be disposed of as if plaintiffs were properly the assignees of the contract. Held, that this obviated the objection that a valid assignment had not been shown, and that the pleadings might be conformed thereto on the appeal.
    8. Same—Certificate of commissioner.
    The contract provided that the work should be completed within sixty days after notice to commence; that this should not be construed to mean consecutive days, nor to include days on which the work was delayed by the weather, the acts of the city or unforeseen or difficult circumstances, “ all of which shall be determined by the commissioner of public works, who shall certify the same in writing.” Held, that the obtaining of such certificate was not a condition precedent to the maintenance of an action to recover moneys earned under the contract.
    4. Same—Damages for delay—Counterclaim.
    To avail itself of the right to the liquidated damages provided for in the-contract for delays in the work, the city must allege the same in its. answer either expressly as a partial defense or as a counterclaim.
    Appeal from a judgment in favor of plaintiffs entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes, in an action to recover for work, labor and services rendered and materials furnished in the, construction of a- sewer.

      Robert RJ. Reyo, for resp’ts; Woolsey Carmalt, for app’lt
   Bischoff, J.

On December 27, 1886, one James E. Devlin contracted with the defendants to build a sewer on One Hundred and Forty-eighth street, between Seventh and Eighth avenues, in the city of New York, the work to be commenced at such time as the commissioner of public works should designate, and to be completed within sixty days. At the time of awarding the contract to Devlin the latter executed and delivered to the defendants a bond in the penalty of $2,000, with the plaintiffs as sureties, and conditioned for the faithful performance of the contract by Devlin. The contract, among other things, provided for an assignment thereof by Devlin upon the previous consent in writing to such assignment to be endorsed upon the contract by the commissioner of public works. Devlin, having been duly notified to proceed with the construction of the sewer, delayed the commencement of the work, and was thereupon again notified by the commissioner of public works that, unless the work was begun and completed within. a reasonable time, the contract would be declared abandoned, and he and his sureties held answerable for any damages resulting to the defendants. By direction of the commissioner of public works a similar notice was sent to the sureties, the plaintiffs. Plaintiffs thereupon caused said contract to be assigned to them by Devlin, and having duly notified the commissioner of public works of such assignment, requested his assent thereto and permission as such assignees to proceed with and complete the work. The assent and permission were accorded, but it did not appear upon the trial that the assent was in the manner provided for by the contract.

After completion of the work plaintiffs demanded payment of the contract price, to wit, $2,851.54, which amount was conceded to be correct, but defendants claimed to be entitled to a deduction of $880 under the contract, being at the rate of twenty dollars per day for forty-four days employed in the construction of the sewer in excess of the sixty days within which the work was agreed to be done. To this deduction plaintiffs objected and thereupon brought suit to recover the full amount and did recover a verdict for the same, with interest, and from the judgment entered thereon defendants have appealed.

The record of this case as the same has been presented to us shows that the contentions of the defendant, upon the trial were threefold:

First. That plaintiffs had not proved the performance of the work and that they have furnished the materials alleged in the complaint, nor their value;

Second. That plaintiffs had not shown either a contract between themselves and the defendant, pursuant to law, for the performance of the work, or an assignment to them of the contract with Devlin;

Third. That defendants were entitled to a deduction of $880 for damages for the excessive number of days employed in the construction of the sewer.

The first contention arose upon a motion for the dismissal of the complaint,- when the plaintiffs rested. The learned trial justice ruled, and we think properly so, that the answer did not admit the work or its value and required plaintiffs to give proof of these facts, and thereupon plaintiffs’ counsel was permitted to introduce in evidence what purports to be a portion of a certificate made by the commissioner of public works. This extract may be found at page 21 of the case on appeal, but it is difficult to understand how it can be construed to be any proof of the rendition of the work, the furnishing of the materials, or proof of the value of any work performed by the plaintiffs, or their assignor. It is at most but a specification of the work therein mentioned with certain prices set opposite, and contains no admission, express or implied, that the work therein mentioned was performed by any person whatsoever.

Nevertheless the motion to dismiss was properly denied. The answer admits that certain worJc was performed in the construction of the sewer, and this entitled the plaintiffs to a recovery of at least nominal damages, and hence it would have been error to dismiss the complaint. The defect in plaintiffs’ proof was subsequently abundantly supplied by the defendants, when defendants’ counsel introduced in evidence the certificate of the commissioner of public works in full, from which it appeared that the work had been completed and that the sum claimed by plaintiffs was the amount which defendants agreed to pay therefor.

Defendants’ second contention was disposed of by the verbal stipulation entered into by counsel for the respective parties to this appeal, made in open court upon the argument, to the effect that this court should dispose of the appeal as though the plaintiffs were properly the assignees of the contract with Devlin, and that the pleadings for such purpose should be deemed to be amended so as to contain an allegation of such assignment in the complaint and an admission of the fact of such assignment in the answer. The appellate court has power to allow such amendment, see Reeder v. Sayre, 70 N. Y., 180; Volkening v. DeGraaf, 81 id., 268, and the order to be entered on the decision of this appeal should contain a direction that the pleadings be amended in accordance with the stipulation.

The remaining contention, that respecting the claim of the defendant for $880 liquidated damages, arises out of the following clause of the contract with Devlin, to wit: The said party of the second part (Devlin) hereby further agrees, that he will commence the aforesaid work on such day and at such place or places as the said commissioner may designate, and progress therewith so as to complete the same in accordance with this agreement, on or before sixty days thereafter; that the said number of days shall not be construed to mean consecutive days, but the aggregate time of all inspectors who may be employed on the work; and that in the computation of said time, the length of time (expressed in days and parts of a day) during which the work or any part or section thereof has been delayed in consequence of the condition of the weather, or tides, or by any difficult circumstances so unusual that they could not be foreseen previous to or avoided during the prosecution of the work; or by any act or omission of the parties of the first part (all of which shall be determined by the said commissioner of public works, who shall certify to the same in writing), and also Sundays and holidays, on which no work is done, and days on which the prosecution of the whole work is suspended by order in writing by the said commissioner in writing, shall be excluded. * * * And the said party of the second part hereby further agrees that the said parties of the first part shall be, and they are hereby, authorized to deduct and retain out of the moneys which may be due or become due to the said party of the second part under this agreement, as damages for the non-completion of the work aforesaid within the time hereinbefore stipulated for its completion, the sum of twenty dollars for each and every day the aggregate time of the inspectors employed upon said work may exceed the said stipulated time for its completion, which said sum of twenty dollars per day is hereby, in view of the difficulty of estimating such damages, agreed upon, fixed and determined by, the parties hereto as the liquidated damages that the parties of the first part will suffer by reason of such default, and not by way of penalty.”

It was claimed by counsel for defendants upon the trial, and urged upon the hearing of this appeal, that this clause necessitated the production of the certificate of the commissioner of public works as a condition precedent to a recovery by the plaintiffs. Precisely the same clause was considered by the general term of the supreme court in the first department in Dady v. The Mayor, etc., of New York, 32 N. Y. State Rep., 1082, June, 1890, and it was there held, “ that this provision was intended to enable the city to appeal to the commissioner in case the contractors claimed too large a deduction, and did not make the obtaining of a certificate a condition precedent to the maintenance of a suit to recover moneys earned under the contract.” This construction appears appropriate upon a careful and impartial reading of the particular clause under consideration. Phelan v. The Mayor, etc., 119 N. Y., 86; 28 N. Y. State Bep., 683, is not to the contrary, as the learned counsel for defendant urges.

The decision in that case extends no further than that upon proof by the defendant that the time employed in the performance of the work exceeded the time allotted by the contract, the defendant is entitled to a deduction, from the contract price agreed upon to be paid for the work, of the liquidated damages fixed for each day in excess of the allotted number of days, and. that if the contractor desires to defeat or diminish the deduction for such liquidated damages, it is incumbent upon him to procure a certificate of the commissioner of public works excusing the delay, or part of such delay, or to show that such a certificate had been demanded, and that the commissioner had neglected or refused to act in the premises.

To have availed themselves, however, of the right to deduct the liquidated damages provided for in the contract, the defendants should have pleaded such right by proper averments and recitals. The right to the deduction constitutes either a counterclaim to the amount of liquidated damages claimed, or a partial defense to plaintiff’s cause of action. If relied upon as a counterclaim, the answer should have so stated and asked for affirmative relief, so that plaintiffs upon sufficient notice might have replied thereto if they had so desired, and thus have secured the right to attack the commissioner’s certificate by making the question of the good faith and fairness of the certificate an issue in the action. Equitable Life Assurance Society v. Cuyler, 75 N. Y., 511. Again, if the allegations of the answer respecting the commissioner’s certificate and the deduction of liquidated damages were intended to be interposed as a partial defense to the plaintiff’s cause of action, the answer was not effective for that purpose because it did not expressly state that the averments were relied upon as a partial defense. See Code of Civil Procedure, § 508.

There was, then, at the time of the trial no issue to be disposed of touching the defendants’ claim for liquidated damages, and this view renders unnecessary the discussion of the objections to the admission and exclusion of evidence bearing upon such claim, as well as defendants’ exceptions to the charge and refusals to charge so far as they refer to the same claim. If defendants were not in a condition to insist upon .their claim, the exception and exclusion of evidence relating thereto, and its submission to the jury, might have been prejudicial to the plaintiffs, but cannot be said to have harmed the defendants.

The judgment and order appealed from should be affirmed, with costs.

Daly, Ch. J., and Pryor, J., concur.


author: Pryor, J.

text:
    John Claflin et al., Resp’ts, v. James A. Flack, Sheriff, App’lt.

      (New York Common Pleas, General Term,

      Filed February 2, 1891.)

    Sale—Fraudulent representations—Mercantile agency.
    Plaintiffs sold goods to the firm of K. & F., relying on a report of a commercial agency as to a statement made to it by K. & F. of their financial standing. Before the delivery of the goods the agent of said agency called on K. & F. for another report, but they refused to give one. The application was not made at the instance of plaintiffs nor was the refusal communicated to them. Held, that the representation of solvency made to the agency was a continuing one, a recall of which was necessary to relieve K. & F. of liability to persons who extended credit in reliance thereon, and that the refusal to make a new statement was not sufficient for that purpose and did not affect plaintiffs’ right to rescind because of the falsity of the representation made.
    Appeal from judgment of the general term of the city court of Hew “York, affirming judgment entered on a verdict in favor of plaintiffs and order denying motion for a new trial on the minutes.
    Action to replevin certain goods levied upon by defendant under executions against the firm of Kayton & Feustman. The goods in question were sold to Kayton & Feustman by plaintiffs on credit, relying on a report of a commercial agency that Feustman had stated that the firm had a stock of the value of $12,000 and owed only $3,000. The evidence tended to show that at the time of such statement the firm owed over $5,000.
    • Sullivan & Cromwell, for app’lt; David Leventritt, for resp’ts.
   Pryor, J.

Appeal from judgment of the general term of the city court, affirming a judgment on the verdict of a jury and an order denying a motion on the minutes for a new trial.

Beplevin to recover certain goods or their value, alleged to have been obtained from plaintiffs by fraudulent misrepresentation.

The case omits the statement that it contains all the evidence; and so we are precluded from inquiry into the facts by the presumption, in support of the judgment, that the proof was sufficient to carry the case to the jury and to warrant the verdict. Arnstein v. Haulenbeek, 34 N. Y. State Rep., 297; Cheney v. R. R. Co., 16 Hun, 415.

Perhaps, however, we are authorized to review the motion for dismissal of the complaint, on the ground of a fact affirmatively appearing in the record, and which, it is contended, suffices to defeat the action. “ ' "

The misrepresentation by which credit was acquired with plaintiffs was made to a mercantile agency, and by that agency communicated to plaintiffs. Before plaintiffs acted on the misrepresentation the agency again called on the purchasers of the goods for another report of the condition of their business; but they declined to furnish it. But it does not appear that the agency so called at the instance or in the interest of plaintiffs, or that the fact of the refusal of another report was communicated to plaintiffs. The fact, therefore, does not affect plaintiffs; and since the representation of their solvency which the purchasers lodged with the agency was, in its nature and purpose, a continuing one, a recall of it was necessary to relieve them of liability to persons who extended credit in reliance on the representation. Had the purchasers, instead of merely refusing another report, expressly withdrawn the one formerly made, a question different from that before us would have been presented.

We have examined the exceptions in the record; but we find none to be well taken, or of sufficient plausibility to require discussion.

The argument of appellant that the misrepresentation of the purchasers was too remote in time from the credit by plaintiffs, is not supported by the facts; for it appears that plaintiffs received the report from the agency “ in the spring or early summer of 1889,” and they commenced the credit with the purchasers in June of the same year.

We may add, in conclusion, that, assuming all the evidence to be before us, we think the verdict in accordance with the clear preponderance of proof.

Judgment and order affirmed, with costa

Allen and Bischoff, JJ., concur.


author: Per Curiam.

text:
    John Forde, Resp’t, v. James E. Nichols et al., App’lts.

      (New York Common Pleas, General Term,

      Filed February 2, 1891.)

    1. Negligence—Nuisance—Charge.
    In an action for injuries alleged to have been caused by the maintenance of an obstruction in a street, a charge that plaintiff, to recover, must prove defendants’ negligence, and the absence of contributory negligence on his part, is more favorable to defendants than they have a right to ask.

      2. Same—Evidence.
    In such an action it is proper to ask a medical witness what results will follow with reasonable certainty from the injuries.
    8. Same—Condition of premises.
    Evidence is also admissible as to the nature, appearance and use of the structure claimed to be an obstruction within a few hours after the accident.
    Appeal from judgment entered upon a verdict in favor of plaintiff, and from order denying a new trial in an action to recover special damage resulting to plaintiff from the maintenance of a nuisance by defendants.
    Defendants had erected a platform in front of their premises extending six inches beyond the stoop line, which had movable steps, and also a platform along the curb of the sidewalk, for the purpose of loading goods upon their wagons. Plaintiff, finding the sidewalk obstructed by these and the skids connecting them, endeavored to pass by, using the steps and platform, and when upon the third step slipped and fell, sustaining the injuries complained of.

      John Proctor Clarke, for resp’t; Henry D. Hotchkiss, for app’lts.
   Per Curiam.

This case presents no error of sufficient importance to call for a reversal of the judgment and order appealed from. The evidence was abundant to warrant the verdict and the facts proved established defendants’ liability beyond all questiqn. So also the charge, proceeding partly upon the theory that to entitle plaintiff to a recovery he must establish defendants’ negligence and absence of contributory negligence on his part, was more favorable to defendants than they had a right ask. Wood on Nuisances, §§ 295, etc., and cases cited: Irvine v. Wood, 51 N. Y., 224; Creed v. Hartmnan, 29 id., 591; Congreve v. Smith, 18 id., 79; Congreves. Morgan, id., 54.

The question addressed to and answered by plaintiff’s medical witness, Dr. Palmer, “ What results will follow with reasonable certainty from the injuries which you observed,’’ was competent and proper and was in strict accord with the ruling in Strohm v. N. Y., L. E. & W. R. R. Co., 96 N. Y., 305.

So also the testimony of John K. Forde, a witness for the plan-tiff, as to the nature, appearance and use of the structure, claimed to be an encroachment upon the public highway, within a few hours after the injuries to the plaintiff, was relevant and, therefore, competent and properly allowed.

The judgment and order appealed from should be affirmed, with costs.

Allen, Bischoff and Pryor, JJ., concur.


text:
    Benjamin Winchell, App’lt, v. The Knickerbocker Ice Co., Resp’t.

      (New York Common Pleas, General Term,

      Filed February 2, 1891.)

    Release—Misrepresentations.
    In an action to set aside a release and to recover upon a contract as originally made, on the ground that such release was procured hy false representations, there was no evidence as to what occurred between the parties to it at the time the release was signed, but evidence was given showing that other dealers under similar contracts had been induced by similar representations to accept similar reductions. Held, that the fact that false representations were made to one person does not establish- that they were made to another; that there was an entire failure of proof, and that a nonsuit was properly granted.
    This is an appeal from a judgment dismissing a complaint at the equity term of this court.

      Rollin Tracy, for app’lt; Michael M. Forrest, for resp’t
   Per Curiam.

The action was properly disposed of by the court below. The gravamen of the action was that the defendant by false or mistaken representations, induced one Hewitt to execute a release in writing, by which he agreed to accept a certain number of tons of ice as his pro rata of a previous contract, and that the quantity of ice he thus agreed to accept was less than the quantity to which he was entitled. It is alleged that by divers mesne assignments the cause of action of Hewitt has been vested in the plaintiff in this action. The judgment demanded in the complaint is that the said release given by Hewitt to defendant be vacated and set aside, and that the plaintiff recover damages.

No evidence offered on the part of the plaintiff was excluded to his injury. He had the burden of proof to establish by a fair preponderance of evidence that the agreement or release was obtained from Hewitt by misrepresentation. There does not appear to be in the case a particle of proof that any misrepresentations were made to Hewitt, or that Hewitt relied or acted upon any representations whatever in executing the release or agreement above referred to. Hewitt died in 1871. Bramore, the president of the defendant company, who had charge of the transactions with ice dealers, died before the trial of the cause. There was absolutely no evidence in the case as to what occurred between Hewitt and the defendant’s officers at the time of making the agreement. Dishonest and unfair dealings are not presumed in law. Evidence to invalidate the release should be direct and not doubtful or equivocal.

The appellant was allowed on the trial of this case to introduce proof that other dealers under contracts similar to Hewitt’s were induced by defendant’s misrepresentations or mistake to accept the same quantity of ice as their pro rata under their contracts in the year 1870. This would not establish that there was any fraud or mistake on the part of the company in dealing with Hewitt. The fact that false representations are made to one person does not establish that they are made to another. For anything that appears in this case, it may well be that the release was executed by Hewitt upon grounds entirely satisfactory to him.

Plaintiff appears. to have failed entirely in his proof, and the nonsuit was, therefore, properly granted.

. The judgment appealed from should be affirmed, with costs.

Allen, Bischoff and Pbyob, JJ., concur.


text:
    Eli M. Goodman, Resp’t, v. August Goetz et al., App’lts.

      (New York Common Pleas, General Term,

      Filed February 2, 1891.)

    1. Partnership—Power op partner to give bill op sale.
    One partner is the authorized agent of the others for settlement of the partnership liabilities even by transfer of the partnership property, and, therefore, may give a bill of sale in payment of a firm debt without the consent of his copartners.
    2. Conversion—Evidence.
    In an action for conversion against the sheriff, where his indemnitors have been substituted, it is not error to admit the bond of indemity in evidence, although a cause of action has not been alleged against the indemnitors by a supplemental complaint, where one of the indemnitors was an original defendant in the action, and the objection is general in behalf of all the defendants.

      3. Jury—Irregularity in drawing.
    An objection on the ground of irregularity in the drawing of a jury to be available must be made before the jury is drawn. The presumption is always in favor of its regularity.
    Appeal from order denying motion for a new trial.

      Leopold Leo, for app’lts; Henry L. Landon, for resp’t.
   Per Curiam.

Appeal from an order denying defendant’s motion for a new trial. Action for conversion of certain merchandise, claimed by plaintiff under a bill of sale from the firm of Pohlman & Pigge and levied upon by the sheriff under an execution on a judgment confessed in favor of defendant Helena Figge. The record discloses various allegations of error; but, for the most part, they are so manifestly frivolous as not to warrant serious consideration. Perhaps, however, three of the alleged errors may justify a word of comment.

(1.) Plaintiff’s title to the goods was challenged upon the grounds: First, that the one partner who executed the bill of sale had no power to do so without the consent of his co-partner; and secondly, that the transfer was made with intent to defraud creditors. As to the first ground, it suffices to say that the transfer of the goods to plaintiff was in payment of a firm debt, and that one partner is the authorized agent of the others for settlement of the partnership liabilities, even by transfer of the partnership property. Van Brunt v. Applegate, 44 N. Y., 544; Mabbett v. White, 12 id., 443; Chester v. Dickerson, 54 id., 1; Graser v. Stellwagen, 25 id., 315.

As to the second ground, the only pretense of fraud is founded on an alleged want of possession by the vendee; but the evidence is ample to show an immediate delivery and a continuous possession.

(2.) The second imputation of error is equally untenable. It was not necessary by an amended or supplemental complaint to bring in the indemnitors, or to show a cause of action against them. Pool v. Ellison, 30 N. Y. State Rep., 135.

Indeed, the point was not sufficiently presented by appellant’s exception to the admission of the bond in evidence; for Helena Figge, one of the indemnitors, was an original defendant with thfe sheriff; and as to her the bond was competent evidence. But, the objection was general, in behalf of all the defendants.

3. Another matter urged by the appellant as a ground for reversal of the order has reference to an alleged irregularity in the drawing of the jury. It is sufficient to say in answer to this, that the presumption is always in favor of regularity; and to make the objection available, it must affirmatively appear that it was made before the jury was drawn. The record before us fails to show that the objection was thus made and hence the irregularity, if any, must be deemed to have been waived.

The order appealed from should be affirmed, with costs.

Allen, Bischoef and Pryor, JJ., concur.


author: Allen, J.

text:
    John F. Saunders et al., Resp’ts, v. William H. Payne, Impl’d, App’lt.

      (New York Common Pleas, General Term,

      Filed February 2, 1891.)

      T. Sales—Where goods are delivered for inspection, no title passes.
    The plaintiffs, importers of diamonds, delivered diamonds to defendant with a memorandum as follows : “The following goods are for your inspection and remain the property of Saunders, Ives & Co., until a correct invoice of those selected is sent to you.” Held, that such a contract gave defendant no title to the goods, and no right to sell them.
    '3. Trial—Error in charge to jury.
    Although the charge may be improper, if it is not hurtful to appellant, he cannot complain.
    Appeal from a judgment of the general term of the city court •of New York, affirming a judgment of a trial term, and from an ■order denying a motion for a new trial.

      Jar dine Lyng, for app’lt; Franldin Bien, for resp’ts.
   Allen, J.

The action was brought to recover damages for ■diamonds delivered by plaintiff to defendant Plaintiffs are importers of diamonds in the city of New York. In the month of December, 1887, defendant Payne called upon plaintiffs, and said he had a customer for some diamonds, and wished plaintiff to give him some to show to his customer. Plaintiff at that time declined to give him any, but some days -afterwards delivered to defendant certain diamonds of the value of $1,148.85 on memorandum us follows: “ The following goods are for your inspection and remain the property of Saunders, Ives & Go. until a correct invoice •of those selected is sent to you. On return of goods, please insist on having this memorandum checked by the person who received it.” (Here follows a description of the goods.) The complaint ■alleges the delivery, the demand and the refusal to return. The answer denies all the material allegations of the complaint, and ■sets up that the defendant purchased the goods from the plaintiffs. Upon the trial, the delivery of the goods and their value were admitted.

There are three points urged by the appellant as ground for reversal of the judgment which require notice. It is claimed by the •appellant that the memorandum, above referred to, gave defendant authority to sell the goods. And the appellant refers to the ■case of Smith v. Clews, 114 N. Y., 190; 23 N. Y. State Rep., 166, in support of his claim.

That was an action under the Code of claim and delivery of personal property alleged to belong to the plaintiffs and wrongfully withheld by the defendant. One Miers had obtained some diamonds from the plaintiffs on memorandum, which said they were delivered to him on approval to show to his customers, and sold "them to the defendant Clews. The question in that case was whether the defendant Clews obtained the title to the diamonds, and that depended upon Miers’ authority to sell. The court construed the contract, in the light of the evidence before it, to confer •on Miers the power of sale, and placed emphasis on these facts : Plaintiffs were dealers in diamonds, they knew Miers, and that he was engaged in the business of diamond dealer, they had on former occasions entrusted diamonds to him, and he sold them and accounted for the proceeds of the sale without any fault being found on account of any authority to sell.

Upon these facts, and upon the memorandum, the "court thought that Miers had the power to take the diamonds, show them to the customer, and if approved of by the customer, sell them to him. It must be borne in mind, however, that that action was not between the owner of the diamonds and the person who. obtained them upon memorandum, but between the owner of the diamonds and the purchaser from that person in good faith. That, is not this case. This action is between the parties to the contract. It is in writing, and there is nothing vague or equivocal about it; it passed no title to the defendant Payne, and does not import any authority to sell. As between Payne and the plaintiffs it appears from the contract that the diamonds were received for inspection and remained the property of Saunders, Ives & Co. until a correct invoice of those selected was sent to him. How the contract would be construed in a suit between the plaintiffs and a third party who might have purchased the diamonds and paid for them we are not required to consider.

As between the parties to this action the contract is plain. There is no proof in the case that the diamonds were ever sold by the defendant to anyone, and no proof that they ever went out of his possession. Defendants were not witnesses upon the trial, and offered no witnesses except one Nellis (who testified that he was twenty-one years old) to prove the custom of the trade in memorandum goods.

Testimony of this character might be material in an action between plaintiffs and a purchaser of diamonds from the defendant. As this is not such a case, and there is no proof whatever that the diamonds were ever sold by the defendant, it does not seem material here. The judge left the question of the contract to the jury in a very fair charge, and, we think no principle of law has: been violated in this branch of the case.

Appellant next urges as error that there is no proof of a sufficient demand upon the defendant. The proof on this subject is that on or about January 5,1888, Albert Kraus, a member of plaintiffs’’ firm, went to the house of the defendant Payne with a demand in writing (marked in evidence Ex. D), and was told by his servant that Payne was sick and upstairs; that he handed the written demand to this servant, and the servant went upstairs, and after a while Payne’s wife came down stairs having the letter in her hand open. This proof raises a strong presumption that the defendant-received the notice, and we think the demand was sufficiently proved. At all events, the jury, on sufficient evidence} have found the fact of the demand and their verdict is conclusive.

Appellant claims error in the charge of the court. The court, charged the jury as follows: “A conversion means wrongful taking and keeping; not giving up again after wrongfully taking after demand has been made, but practically, in plain English, .stealing; that is the lay English of it.” There can be no doubt that this was an improper charge. But who was prejudiced by it? Most clearly, the plaintiffs; it made it more difficult for them to get a verdict from the jury. And if the plaintiffs had been defeated in the action, and had appealed, a strong ground would be presented for reversing the judgment and awarding a new trial to them. But it seems to us that no mode of reasoning can make it appear that this part of the charge has in any. way injured the defendant.

The judgment and order appealed from should be affirmed, with ■costs.

Bischoff and Pryor, JJ., concur.


author: Daly, Ch. J.

text:
    William Rockwell et al., Resp’ts, v. Thomas D. Hurst, App’lt.

      (New York Common Pleas, General Term,

      Filed February 2, 1891.)

    1. Brokers—When commission is earned.
    The defendant, by an instrument in writing, promised to pay plaintiffs a sum stated if they procured a person who would furnish the necessary money to erect a factory for defendant, “the terms of the transaction to be satisfactory to him.” When the defendant discovered what the factory would cost, he withdrew from the transaction upon the ground that the matter would be too expensive. In an action for the brokers’ commissions, Held, that plaintiffs were entitled to their commissions, and that as the defendant had, without objection, allowed the question of performance to be submitted to the jury, the latter might award the full amount, although no specific proof of the value of the services was made by plaintiffs.
    ■3. Same—Evidence—Opinion of witness.
    The defendant asked a witness, his agent, whether the plaintiffs ever brought to the defendant, or to the agent for him, anyone who was willing to make an arrangement in regard to the factory upon satisfactory terms. Held, that the question was improper, as in effect it asked for the opinion of the witness as to whether the contract had been performed.
    Appeal from a judgment of the general term of the city court, affirming a judgment of the trial term, entered upon the verdict of a jury in favor of plaintiffs for $540 and costs, and an order ■denying a motion for a new trial.

      Ira Gt Darrin, for resp’ts; John M Parsons, for app’lt
   Daly, Ch. J.

The defendant employed plaintiffs, upon a promised compensation of $500, to procure a party who would furnish the necessary money to erect such a factory as the defendant needed for his business on certain lots of land in Brooklyn; stipulating, however, that the terms of the transaction should be satisfactory to him. The plaintiffs thereupon procured a party who was able and willing to furnish the money for the required purpose, and introduced him to the defendant, with whom and the latter’s agent he had some preliminary conferences concerning the cost of of the building, estimates for that purpose being procured from an architect. Before the question of terms was reached, the defendant concluded that the cost of the factory would exceed the figure he had in view, and abandoned further negotiations, notifying the plaintiffs of the fact. The plaintiffs commenced this action to recover the value of the services they had rendered in procuring the party in question, claiming $500 as compensation therefor, alleging the contract of employment’ as above stated, the procuring of the person to furnish the money, notice to the defendant, the refusal of the latter to accept the money, the expenditure of time and effort by the plaintiffs under such employment, and the value of such services. The defendant answered., alleging a different contract of employment, to wit, in substance that the plaintiff, Pearson, was to procure the necessary money to build the factory, but that his compensation was to be contingent upon the use of said money by defendant for such purposes; that the person procured by plaintiffs to advance moneys was not willing to do so except upon conditions not satisfactory to defendant; and denying the value of plaintiffs’ services.

Upon the trial, the allegations of the complaint were fully sustained by the evidence. The agreement of employment of defendant was in writing, and was produced, and it contained no such conditions as defendant set up in his answer, but only required that the terms upon which the money was to be advanced should be satisfactory to defendant. It was shown that there was no-practical dispute as to such terms, because the defendant abandoned the idea of building upon discovering that the factory would cost more than he anticipated. The defendant himself swore, “I don’t know that Mr. Peters (the party procured by plaintiffs) ever stated to me the terms upon which he would enter into such a contract. The.details were undertaken by Mr. Anderson, (defendant’s agent); the particulars of the transaction. I did not continue these negotiations, becausé the price was so much greater' than I contemplated in the beginning, or than I could afford. The cost of this building largely exceeded the amount that I had originally considered as the probable cost.”

After this unqualified statement of his reasons for abandoning the-project, his counsel attempted to draw from him and to make it. appear that he was actuated in so doing by a report from Mr. Andei’son that Mr. Peters had required ten per cent upon the cost of the building as the profit to himself. Mr. Anderson testified that such a proposition was broached by the plaintiffs on behalf of Peters, and that he was surprised thereat; but he was confronted with his own letter to plaintiffs setting forth a detailed scheme of the proposed building enterprise, whereby a builder advancing the money for the building would receive as profit ten per cent on the cost of construction besides other percentages, making a margin of nearly thirty per cent return for his money .the first year, and more afterwards. As defendant swore that-Anderson was authorized to arrange terms and details, this piece of evidence shows clearly that it was not any dissatisfaction with the terms proposed by Mr. Peters that caused the defendant to-break off the negotiations, but that the true reason was as stated by him, that the projected building would cost more than he anticipated.

The court left it to the jury to say whether the plaintiffs had procured a party ready, willing and able to furnish the necessary money to erect a factory that was needed by the defendant in his business, on terms that were satisfactory to him; and they found a verdict for the plaintiff for the full amount claimed. Ho exception was taken by the defendant to leaving the question of performance to the jury; but on the contrary he asked that the court charge that “ terms of the offer brought by this party to ■the defendant must have been shown by the plaintiffs to have been satisfactory before they can recover.” The court said: “I have so told them, and that they must show that by a preponderance of evidence.” It would have been quite proper for the court to instruct the jury that the plaintiffs did not claim as for a full performance of their contract, but for the value of their services which they had .rendered up to the time that the defendant terminated their employment, and for damages for his act in doing so upon such a charge, the jury might have given him less than the stipulated compensation, but there was no exception to the charge as made, and the defendant did not request that the value of the services rendered should be left to the jury. For this reason we are not called upon to review the correctness of the charge nor anything connected with the submission of the case to the jury; there being no exception in that respect. Our duty as an appellate court is confined to the review of alleged errors when the question is raised by the proper exceptions.

The defendant was content to rest his legal rights upon his exceptions to the denial of his motion to dismiss the complaint, not upon the form in which the case was submitted to the jury. • The motions to dismiss were properly denied, for plaintiffs were suing for the value of the services rendered and they were entitled to recover something upon the facts proved. Pursuant to the terms of their employment, and strictly in conformity therewith, they had procured a party able and willing to furnish the necessary money to enter into negotiations with the latter as to the terms of furnishing such money, and there is nothing to show but that such terms would have been satisfactory to the defendant; on the contrary, it may fairly be inferred from the evidence, that had the latter concluded to go on with the contemplated enterprise, he would have got the money upon his own terms as proposed by his agent Anderson.

The plaintiffs, therefore had substantially performed their contract, but at all events had so far performed as to be entitled to compensation for what they had done. It is true, as claimed by the appellant, that one who employs a broker may terminate the employment at will, while negotiations on the part of the latter remain unsuccessful. Sibbald v. Bethlehem, Iron Co., 83 N. Y., 381. That was a case in which the broker, as the court said, “had been unsuccessful. He had not made .a bargain, and had failed to bring buyer and seller to an agreement, after having had four months’ opportunity, and now his authority was terminated without his having earned commissions." This is not the case before us. Here the plaintiffs had been successful as far as they had been permitted by the defendant to go, and were not given the opportunity to go farther. There might have been something more for them to do. It was their duty to bring the party to the terms prescribed by their employer, ana that might have involved more or less negotiation, but it does not lie with the defendant to say that because this was not performed the plaintiffs have not earned their recompense. Perhaps we might go so far as to say that, under the cases, the defendant having made the performance of the condition precedent impossible by his own act, is estopped from denying that the plaintiff had not performed. Gallagher v. Nichols, 60 N. Y., 438; Risley v. Smith, 64 id., 576; 2 Parsons on Con., chap. 1, § 5.

We cannot say that anything remained to be done by plaintiffs to earn their commission. The evidence does not, as we have said, warrant the inference that there would have been any difficulty about terms. For aught that appears, the plaintiffs had substantially performed their whole undertaking. This consideration disposes of the point made on the appeal (but not specifically raised upon the trial), that there is no proof of the value of the services rendered by the plaintiffs, and the jury had the right to find that the services rendered were worth the whole stipulated price, because the contract had been substantially performed.

There remain to be considered only the exceptions to rulings upon the admission and rejection of testimony. None of them were well taken. At fols. 31 and 32, the defendant inquired as to a matter which was settled by his own written contract; at fol. -39, as to an immaterial matter, viz.: whether defendant ever realized any profit or value from plaintiffs’ services; at fol. 49, as to a matter which was subsequently answered; at fol. 57, as to communications between defendant and his own agent, which were afterward fully testified to by the agent and were not contradicted, fols. 70 and 71; at fols. 58 and 60, as to his own mental conclusions, which he might well enough have been allowed to give, as it concerned the question whether the proposed terms were satisfactory to him; but as it subsequently appeared that substantially the same terms had been originally proposed on his behalf by his own agent, he could not be permitted to assign them as a cause of dissatisfaction, and if he had it would have contradicted his own testimony as to his reasons for abandoning the negotiations, fol. 56; at fols. 62, 63, 74 and 96, questions were asked concerning the same matter; at fols. 72 and 73, the witness Anderson was asked, in substance, to state a conclusion of fact and to give an opinion as to whether the plaintiff had performed his agreement; at fol. 94, the question objected to had already been put and answered, fol. 73. None of these exceptions requires a reversal.

The judgment and order appealed from should be affirmed, with costs.

Bischoff and Pryor, JJ., concur.


text:
    John H. Flagler, Resp’t, v. Richard S. Newcombe, App’lt.

      (New York Common Pleas, General Term,

      Filed February 2, 1891.)

    Bills and notes—Accommodation endorser—When discharged by RELEASE OE MAKER.
    Plaintiff became an accommodation endorser upon a note, upon which the holder recovered judgment agaiust both maker and endorser. The maker paid the judgment by the check of defendant, to whom it was then assigned. At this time a levy had been made upon sufficient goods of the maker. This was abandoned, and the execution returned unsatisfied. The defendant then attempted to enforce the judgment against the endorser, and this action was brought to enjoin him. Held, that the abandonment of the levy by the judgment creditor, however procured, discharged the endorser.
    Appeal from judgment in equity on trial by the court without a jury. Action to enjoin enforcement of a judgment.
    The following is the opinion of the special term:
    Allen, J.—On the 4th day of June, 1885, one Eugene M. Earle made his promissory note for $1,000, dated on that day, payable to his own order six months after date; this note was endorsed by Earle, and also by the plaintiff Flagler, and was thereafter delivered to one William H. Townley for value. The note was not paid at maturity, and on the 16th day of December, 1885, Townley obtained judgment on said note in" the city court of New York against both Earle and Flagler; and on the same day an execution on said judgment was issued to the sheriff and a levy made thereunder upon the goods, stock in trade and fixtures in the store of said Earle, at No. 233 Fifth avenue in this city; this stock consisted of harnesses, saddlery and similar goods, of considerable value, and of a value over all encumbrances shown to be largely in excess of the amount of the said judgment. On the 18th day of December, 1885, after the sheriff had been in charge of the property by virtue of his levy for two days, Earle gave to the judgment creditor a certified check, signed by the defendant Newcombe, for the amount of the judgment, and received an assignment of the judgment and a receipt, as follows:.
    “ Townley )
    “ m. t
    “ Earle et al.)
    “New York, December 18, 1885.
    • “ Received of R. S. Newcombe, Esq., attorney for defendant Earle, ten hundred and twenty-three and seventy one-hundredths dollars in full of the amount due on the judgment in the above entitled action, for which I have delivered an assignment of said judgment; said Newcombe to pay the sheriff’s fees on execution.
    (Signed), W. H. Townley.”
    Thereafter, and on the same day, the sheriff acting, as he claims, under the orders of Mr. Cardozo, the partner of the defendant, abandoned the levy, and subsequently returned the execution unsatisfied at the request of Newcombe & Cardozo.
    Afterwards Mr. Newcombe, as "assignee of said judgment, issued an execution and sought to enforce the collection thereof from the plaintiff Flagler, and this action was brought to enjoin such collection.
    It is claimed by the plaintiff that he is entitled to judgment upon two grounds: First, that the judgment was paid by Earle, or for his benefit, and plaintiff as endorser was therefore released from liability; and, second, that the release of the levy upon Earle’s goods extinguished the judgment against Flagler.
    There is a controversy upon the matters of fact which bear upon the ground first above mentioned. The defendant claims that Flagler received value for his endorsement, and plaintiff insists that he was a mere accommodation endorser. The preponderance of testimony and the probabilities of the case indicate that Flagler was an accommodation endorser of the note. That the payment by the maker of a note of a judgment against him and his endorser is a satisfaction of the whole judgment is elementary. If the judgment therefore was paid by Earle with his own money, or with money borrowed from Newcombe, Flagler was released from all liability. The burden of proof was upon the plaintiff to establish this proposition, and there is not such a preponderance of proof that the defendant did not buy the judgment for himself, and in his own right, with his own money, as he has testified, as would justify me in finding as a matter of fact that the judgment was paid.by Earle, either with his own money or money borrowed from Newcombe.
    I think, however, that the case is with the plaintiff upon the -other ground. A levy was made by Townley, Newcombe’s predecessor in title, upon a valuable stock of goods and fixtures belonging to Earle. Two days after the levy, while the sheriff was in possession of the property, the judgment creditor assigned the judgment to Rewcombe, and the levy was immediately abandoned, without attempting to obtain from the property seized the amount of the judgment. The goods of Earle, seized by the sheriff, were undoubtedly sufficient to satisfy the judgment, and the judgment creditor was bound to pursue and exhaust the remedy he had begun, and the abandonment by him acted as a discharge of the judgment as to Flagler, t Upon the assignment of the judgment to Rewcombe the levy was immediately abandoned. The sheriff testified that he received his instructions to release the levy from Mr. Cardozo, Mr. Newcombe’s partner. It is true that Mr. Newcombe testifies that he did not authorize anyone to direct the sheriff to abandon the levy. Mr. Cardozo was not called as a witness; but it would seem to be immaterial whether the abandonment was authorized by Mr. Newcombe or not. The unauthorized act of the sheriff would produce the same result, and the remedy would be against him.
    So it seems to me, upon the established facts, that so far as the plaintiff in this case is concerned, the defendant, by his own acts, or those of the sheriff, by the release' of his levy, has lost his remedy. Voorhees v. Gros, 3 How., 262; Green v. Burke, 23 Wend., 501; Fraley v. Steinmetz, 22 Pa., 437; Ladd v. Blunt, 4 Mass., 402 ; Hunt v. Breading, 14 Am. Dec., 665.

      Judgment is ordered for the plaintiff accordingly, with costs.

      A. B. Dyett, for app’lt; W. T. Curtis, for resp’t.
   Per Curiam.

Upon a careful examination of the casé, we are satisfied that the findings of fact and the conclusions of law by the learned trial judge are well warranted; and that no error was committed on the trial to the prejudice of appellant.

The evidence was sufficient to authorize the inference that the money paid for the assignment of the judgment was advanced by defendant for the benefit of Earle; that the property levied on was enough to satisfy the judgment; that the withdrawal of the levy was by authority of defendant; and that Flagler was an accommodation endorser for Earle of the note on which the judgment was obtained.

The relation between defendant and Earle, and the evident concert between them for enforcement of the judgment, make the declarations of Earle in prosecution of their purpose competent evidence against defendant.

The judgment should be affirmed, with costs.

Daly, Ch. J., Bischoff and Pryor, JJ., concur.


text:
    Mary Malcolm, Resp’t, v. The Metropolitan Elevated R. Co. et al., App’lts.

      (New York Common Pleas, General Term,

      Filed February 2, 1891.)

    1. Railroads—Elevated—Evidence.
    Where a witness for the defendants, in an action to restrain the operation of an elevated railroad, has testified that plaintiff’s premises have not been materially injured by the railroad, it is proper to ask him on cross-examination how much his own property in the neighborhood had been damaged thereby, for the purpose of testing the soundness of his judgment.
    2. Same.
    An agreement for the sale of the property in question is admissible in such an action to show the duration of the plaintiff’s estate and also that the cause of action sued upon did not pass with the estate but was reserved to the plaintiff, where it contains such a provision, and hence a general objection to its admission is ineffectual. To render an objection available in such case it should discriminate the inadmissible parts.
    Appeal from judgment on a verdict and from order denying motion on the minutes for a new trial.
    Action to recover damages for injury to the rental value of plaintiff’s property from the maintenance and operation of defendants’ railway.
    Plaintiff was owner of a life estate only in the premises, and that estate was terminated by sale 17th July, 1886, between which date and the date when the statute of limitations attached to the cause of action, a period of four years, two months and five days intervened; and it was damages during this interval only that plaintiff was allowed to recover.

      Brainard Tolies, for app’lts; Artemas B. Smith, for resp’t.
   Pryor, J.

For reversal of the judgment appellants rely exclusively upon two exceptions to the admission of evidence ; and the decision of the appeal depends upon the validity of those exceptions.

A witness, owner of a stable adjacent to the premises in question, was allowed, against an objection and exception by appellants, to testify to the amount of injury inflicted on his property by defendants’ railway. As evidence in chief for plaintiff this testimony was clearly incompetent; because, first, the question of specific injury to the property of the witness was wholly foreign from the issue as to injury to plaintiff’s property; and secondly, the opinion of a witness as to the amount of damage is always inadmissible, because a distinct and direct intrusion upon the province of the jury. But, the impeached testimony was not offered or received as evidence in support of plaintiff’s case; and the question is, was it legitimate upon cross-examination?

The witness, introduced for the defense, lived in the house in controversy, and in reply to counsel for appellants testified' that: The elevated railroad don’t bother me much ; I have not found it a serious inconvenience to my living there.” On disclosure of the fact that witness owned a stable in the same street and in proximity to the premises in question, and that he had brought suit against the railroad company for damages to that stable, he was asked on cross-examination: “ How much do you think the elevated road has damaged your stable ?”

On cross-examination, “ a witness may be asked any questions which tend to test his accuracy, veracity or credibility.” Stephen’s Digest of Evidence, art. 129; 1 Grreenl. on Evi., 446. “ The range and extent of cross-examination is, as a general rule, within the discretion of the court, subject to the limitation that it must relate to matters pertinent to the issue, or which tend to discredit a witness or impeach his moral character.” People v. Oyer & T., 83 N. Y., 438. Within the limits thus authoritatively defined by the court of appeals, the interrogatory under criticism was indisputably legitimate. An opinion of the witness that specific property was not materially affected by the operation of a given cause would certainly be in some measure invalidated by an opinion of the witness that other property subjected to the influence of the same cause was thereby injured to an enormous degree. The discrepancy of opinion plainly affects the consistency and soundness of his judgment, and, indeed, affords legitimate ground for challenging his veracity.

Again, upon the supposition that the testimony given was incompetent, for a technical reason the exception under review is unavailable for reversal of the judgment. The question was: “ How much do you think the elevated road has damaged your stable?'' Objection by defendants. The witness replied: “ I consider that the elevated road has hurt my business $20,000.” An obviously irresponsive answer, as to which no motion was made to strike it out, or request to direct the jury to disregard it. The objection was nugatory. Platner v. Platner, 78 N. Y., 91.

Equally untenable is the other of the two exceptions upon which appellants rely. Plaintiff introduced the agreement for the sale of the property in question; defendants objected to the admission of “ the agreement ” in evidence; but the court received it and defendants excepted. But, manifestly, the document was competent evidence to show, first, the duration of plaintiff’s estate, and so the period for which she might recover damages; and secondly, that the cause of action upon which she sues did not pass with the estate, but was reserved to plaintiff. Portions of the paper being competent evidence, a general objection to the entire instrument is ineffectual; but appellants should have discriminated the inadmissible parts and leveled their exceptions exclusively against them.

The provision of the agreement which defendants distinguish as obnoxious evidence is the clause purporting to reserve from the grant of the property a right in plaintiff to sue for future damages ; but the court expressly instructed the jury that the plaintiff could not recover for such damages; and so the error, even if available on the record, was obviated.

Judgment and order affirmed, with costs.

Balt, Ch. J., and Bischoff, J., concur.


text:
    Julius Lipman et al., Resp’ts, v. The Jackson Architectural Iron Works, Impl’d, App’lt.

      (New York Common Pleas, Central Term,

      Filed February 2, 1891.)

    Mobtgages—Mechanic's lien—Pbiobity between.
    Plaintiffs made a builder’s loan secured by mortgage, and had advanced a large amount thereof when defendant filed a mechanic’s lien. Thereupon an arrangement was made by which plaintiffs were to accept orders in defendant’s favor payable when the mortgagors were entitled to certain instalments, and the mechanics’ lien was to be postponed to the payment of such acceptances. A subsequent agreement was made for further advances to be made by plaintiffs for certain specified work, which provided that defendant’s lien should be paid out of the latter advances and the lien be subordinated to the entire amount of the mortgage. The entire amount of the first mortgage was advanced, but the mortgagors never became en-titled to the instalments mentioned in the agreement. Held, that plaintiffs’ mortgage was entitled to priority over the lien of defendant, v
    Appeal from judgment of foreclosure and sale entered upon the report of a referee.
    The following is the report of the referee:
    Stephen H. Olin, Ref.—The only question for decision in this action is as to the relative priority of the lien of the plaintiffs under the mortgage and of the Jackson Architectural Iron Works under its notice of lien.
    The plaintiffs made a builder’s loan to William A Mathesius and Isabella 0. Anderson of $55,000 secured by a mortgage on the premises mentioned in the complaint
    In November, 1888, there had been advanced in cash and by the acceptances of orders the sum of $40,037.34. The Jackson Architectural Iron Works, on September 25, 1888, had filed a mechanic’s lien against the premises.
    In November, 1888, an agreement was made reciting that it was for the best interests of all concerned that work should be continued upon the premises, and that Lipman and Cohen should accept an order in favor of the Jackson Architectural Iron Works for the sum of $2,879.10, with interest, of which $800 should be payable when Mathesius and Anderson became entitled to the fifteenth payment according to the terms of their builder’s loan contract, and the balance when they became entitled to the sixteenth payment according to the terms of the said contract, and providing that the mechanic’s lien should be postponed to the payments of such acceptances and of other acceptances provided for in the agreement.
    The building was not completed by Mathesius and. Anderson, nor were the fifteenth and sixteenth payments reached, and on April 3, 1889, the Jackson Architectural Iron Works entered into another agreement reciting that Lipman and Cohen had contracted to lend Mathesius and Anderson the further sum of $10,000 to be secured by a mortgage on the premises, that sum to be used in putting the trim upon .the building and the plumbing work, and agreeing that Lipman and Cohen should pay to Mathesius and Anderson the full sum of $55,000 and $10,000, less the amount of $2,879.10 and interest, to be paid to the Jackson Architectural Iron Works; provided, however, that such payments and advances, so far as secured by the mortgage of $55,000, should be made for work and materials to be done and used in the construction arid building of the houses and for no other purpose; so far as such advances were made upon the security of the mortgage for $10,000 they should be used for the trim on said buildings and the plumbing work. And it was agreed that the said payments and advances made and to be made on the security of said mortgage of $55,000 and $10,000 might be deemed and taken to be secured by the mortgages to the same extent and in the same way as if the payments had been made prior to the filing of the mechanic’s lien of the Jackson Architectural .Iron Works.
    It now appears that the whole amount of $55,000 provided for by the first mortgage to Lipman and Cohen has been advanced for work and materials to be done and used in the construction and building of the houses It also appears that some advances have been made upon the $10,000 mortgage, and that Mathesius and Anderson have never become entitled to the fifteenth or sixteenth payments due under their building contract.
    The result of these agreements under this state of facts appears to me plainly to be that the Jackson Architectural Iron Works postponed their lien to all advances made for the completion of the building under the $55,000 mortgage, unless Mathesius and Anderson became entitled to the fifteenth and sixteenth payments before the $55,000 had been fully advanced, and the plaintiffs are, therefore, entitled to a lien upon the mortgaged premises for the full amount of $55,000 and interest, in priority of the claim of the Jackson Architectural Iron Works which was postponed by the two agreements mentioned.

      Henry B. .Beekman, for app’lt; Ephraim A. Jacob, for resp’ts.
   Bischoff, J.

The only question litigated between the parties

to this appeal was that of the relative priority of the mortgage lien of plaintiffs, and the mechanics’ lien of appellant, the Jackson Architectural Iron Works.

The mortgage was executed to the plaintiffs to secure future advances to the extent of $55,000, to be paid in instalments, under a building loan agreement between the plaintiffs and the mortgagors. On September 25, 1888, when plaintiffs had advanced upon their mortgage $400,37.84, the Jackson Architectural Iron Works filed a notice of their lien in the office of the clerk of the city and county of New York. Plaintiffs availing themselves of their right to do so under the building loan agreement above mentioned, because of the filing of said notice of lien, refused to make additional advances. Thereupon an agreement was entered into between plaintiffs, the mortgagors and the Jackson Architectural IronWorks, by which plaintiffs agreed to make further advances, and the appellants agreed to subordinate their lien to such advances. This agreement was entered into in November, 1888. On April 3, 1889, a further agreement was entered into among the same parties, pursuant to which the lien of the Jackson Architectural Iron Works was still further subordinated to advances, which plaintiffs agreed to make upon a second mortgage Upon the hearing before the referee no conflict of evidence appeared, the case being disposed of upon the testimony of plaintiff Lipman, and documentary evidence consisting of the three agreements hereinbefore mentioned; and the question of priority determined by the referee rested exclusively on the construction of these agreements.

The opinion of the referee, which forms a part of the record before us, refers to each of these agreements, and a careful examination of them convinces us that the learned referee has not misapprehended their effect, and that no error was committed in his construction thereof.

Accepting the construction as made by the referee, his report and the findings and conclusions stated therein are fully supported by the evidence, and the exceptions thereto furnish no ground for reversal.

The judgment appealed from should be affirmed, with costs.

Daly, Oh. J., and Pryor, J., concur.


author: Hardin, P. J.

text:
    David P. Francis, Resp’t, v. The Rome, Watertown & Ogdensburg R. R. Co., App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February 20, 1891.)

    1. Verdict—When wild not be disturbed.
    Where the plaintiffs character for honesty, faithfulness and integrity are involved, and there is a conflict in the evidence, an appellate court will not interfere with a verdict in his favor, although defendant had the greater number of witnesses.
    3. Master and servant—Services—Cross-examination oe witness.
    In an action by a railroad conductor for wages due at the time of his discharge, where the defense was that he had not accounted for all moneys received, one of defendant’s witnesses testified that he did not buy a ticket because he got on for the purpose of paying a fare. Held, that he might he asked on cross-examination if he did so for the purpose of reporting that he had accomplished something.
    Verdict for the plaintiff at the Oneida circuit for $118.53. Motion for a new trial was made upon the minutes, “on the ground that the verdict was against the evidence.” The motion was denied. The appeal is from the judgment and from the order.

      Beardsley & Beardsley, for app’lt; John W. Boyle, for resp’t.
   Hardin, P. J.

Plaintiff for several years was a conductor in the employ of the defendant. He was discharged. At the time of his discharge there was due him a balance for wages of $114.50. Ho dispute was made at the trial of the amount of his wages remaining unpaid. On the trial the court held, on the motion of the defendant, that it had the affirmative of the issue, and thereupon the defendant called the plaintiff as a witness, and proved the fact that he had, as a conductor, been in the employ of the defendant, and that while in such employ in the month of September he operated, as such conductor, a train in behalf of the defendant running between Watertown, Sackett’s Harbor and Carthage, and that he made his report of the moneys collected , on the 10th day of September and on the 14th day of September, 1888, to the auditor of the defendant, and the amount of moneys which he delivered called for by his report, and his habit to use duplex tickets, and certain other facts and circumstances attending the details of his employment. The defendant put upon the stand five witnesses who had been in the employ of Robert A. Pinkerton as detectives, who had passed over the road and in the cars under the care and supervision of the plaintiff as conductor, and they stated facts and circumstances tending to establish that th.e plaintiff had received moneys on the occasions mentioned by the witnesses for fares without properly using duplex tickets, and which fares were not properly, if at all, included in the reports and payments made by the plaintiff to the defendant while so in the discharge of his duties as such conductor on the days in question. After this testimony was given, the plaintiff was recalled in his own behalf, and testified, among other things, viz.: “ I have heard the operatives testify as to the trains of September 10th and 14th. (Exhibit 1 shown witness, and he says:) This is a report for September 10th; I did not collect any fares on that train represented by that report which is not upon the report and accounted for to the company ; all the fares I collected are on there. (Looking at Exhibit 2, witness says :) I did not collect any fares from passengers on that train on the 14th of September which are not represented upon that report and accounted for to the company; I made out those reports on the day the report is. dated on; made them out in the afternoon; sometimes made them out on the train, and sometimes immediately on arrival at the end of the trip and then sent them in; I couldn’t say outside of the report as to any particular fare or fares collected on the 10th of September from Carthage up to Watertown, nor whether passengers refused to take the duplex tickets I presented to them.” In the course of his charge to the jury, the learned trial judge said: The defense is based upon the proposition that the plaintiff had not fulfilled the contract on his part, and, therefore, is not in a position to demand a compliance with the contract by the defendant.

Among other things, the contract between the parties impliedly was that the plaintiff should deal honestly with the defendant; should pay over to it all the money he collected for it for the fare of passengers, and the defendant alleges that he violated the contract in this respect, and, therefore, having violated it himself, he is not in a position to call upon the court or a jury to enforce the performance by the other side, the defendant That proposition, gentlemen, is true. The plaintiff cannot come into court asking its assistance in recovering upon a contract or enforcing compliance with a contract if it appears in the case that he, himself, has failed to fulfill the contract upon his part in a material respect. There is no difficulty, therefore, about the law. The only question of fact in this case is whether the plaintiff did, in the respects alleged, violate or fail to keep or perform the contract upon his part * * * The question of the credibility of these five witnesses, gentlemen, is a question entirely for you. You have the duty of determining whether they are testifying truly and honestly, or whether they have come here to testify untruly and to testify to things that they did not see. It is a question also for you I whether, if they are honest, it is probable or likely that they are mistaken as to the facts that they testify to. * * * The whole question as to whether they testified truly, or as to whether they are mistaken as to what they testified to, I leave to you without any comment whatever. You have seen the men. They are concededly detectives, sent out for the purpose of ascertaining whether or not this conductor was honest and was dealing honestly with the company.” We think the question of fact was one appropriate for the jury. While there is a direct conflict in the evidence, and while in numbers of witnesses the defendant has the greater, we do not feel called upon to disturb the verdict which has been rendered by the jury upon the vital issues of fact presented by the -evidence. Plaintiff’s character for honesty, faithfulness and integrity was involved. If the defense sought to be established by the defendant was made out, the plaintiff had been guilty of a breach of duty; breach of his contract of employment in that he had been,dishonest, unfaithful to his obligation to the defendant and had embezzled from the defendant its funds. When such questions are involved, and there is a conflict in the evidence, it is not in accord with the usual practice of an- appellate court to interfere with the solutions of such questions by disturbing the verdict of the jury thereon. In Wright v. Saunders, 65 Barb., 216; S. C. affirmed, 3 Keyes, 223, it was said by the court, viz.: “ Although four witnesses against one is a very great preponderance, yet it is the right of a referee to believe the one and disbelieve the four. Having seen and heard the witnesses, he is much better able to determine the amount of credit to which they are respectively entitled than the court can be.” . Applying the rule laid down in that case to the case before us, we are constrained to allow the verdict to stand. Archer v. N. Y., N. H. & H. R. R. Co., 106 N. Y., 602 ; 11 N. Y. State Rep., 32. In Timoney v. Hoppoch, 13 N. Y. State Rep., 568, it was said by the general term of the first department, viz.: “ When the evidence is in conflict the question of fact is properly for the jury, and when controversies are distinguished by diverse statements the disposition made by the jury of a disputed fact must prevail and is rarely disturbed.”

(2) When defendant’s witness Murphy was being cross-examined he stated, viz.: “ I did not buy a ticket because I got on for the purpose of paying a fare.” Thereupon he was asked “For the purpose of reporting that you had accomplished something ?” This question was objected to by the counsel for the defendant, who said: “ It is a question susceptible of a double meaning.” Thereupon the court remarked: “ Well, it is cross-examination, I will allow it;” thereupon the defendant took an exception. The cross-examining counsel then propounded to the witness, viz.: “ Is that so, for the purpose of reporting that you had accomplished something?” The witness answered, viz.: “ Well, I got on for the purpose-; ” and later on the witness answered “ Yes, sir.”

We are of the opinion that the exception presents no error. We think the discretion of the trial judge was not abused in allowing the cross-examination to take place in the manner in which the question we have stated shows it was conducted, and that the witness did not deliver any evidence which was improper in the course of the cross-examination.

We think the verdict and order and judgment must stand.

Judgment and order affirmed, with costs.

Martin and Merwin, JJ., concur.