author: Gray, J.

text:
    Valentine Voght et al., Resp’ts, v. The City of Buffalo, App’lt.

      (Court of Appeals,

      Filed June 7, 1892.)

    1. Municipal corporations—Assessment for paving—Description of WORK IN ADVERTISEMENT.
    A city railroad had laid a track five feet in width and was bound to keep-the street between the rails in repair. The common council directed the city engineer to draw plans and specifications for paving the street to a width of forty-two feet. He advertised for sealed bids “ in accordance with plans and specifications on file ” which excluded the five feet, and he-drew the contract with the successful bidder for thirty seven feet only. Held, that this did not avoid the subsequent assessment, as the “ forty-two feet ” was merely descriptive of the width of the street from curb to curb, within which the work was to he done, and not directory as to ikeamount of repavement to he done.
    2. Same.
    Even if it did refer to the width of the repaving, the subsequent ordering of the work to be done in accordance with the engineer’s plans, which omitted the five feet between the rails, was a ratification and adoption of his plans for the work and was competent.
    3. Same.
    The assessors assessed a little more in amount upon the lands on the north side of the street on the ground that there was no street car track on. that side. Held, not an error which would warrant an avoidance of the assessment.
    4. Same.
    It was necessary to publish the assessors’ notice of the completion of the roll in five successive numbers of the official paper. An intervening Sunday issue was omitted. Held, no error; as the Sunday edition was furnished and sold under different terms from the week day edition.
    Appeal from judgment of the supreme court, general term, fifth department, reversing judgment for plaintiffs, based upon decision of special term.
    The plaintiffs brought this action in equity, to set aside assessments against their property, imposed for repaving Broadway, in the city of Buffalo, and to restrain their enforcement, etc., upon the ground of alleged jurisdictional irregularities in the proceedings by the municipality. The court, at special term, dismissed; the complaint, but, upon appeal to the general term, the judgment, was reversed and a new trial was ordered. The city, defendant, appeals to this court from the order of reversal.

      Philip A. Laing, for app’lt; Frank P. Perkins, for resp’ts.

       Reversing 37 St. Rep, 471.

   Gray, J.

We think the appeal should he sustained. The irregularities alleged were not of such a nature as to invalidate the municipal proceedings; and, furthermore, it does not appear that the plaintiffs have sustained any substantial injury to their property rights. The absence of these elements is fatal to the plaintiffs’ demand for equitable relief. A review of the proceedings of the municipal officers is necessary to a clear understanding of the ■situation. The common council of the city was authorized by its charter to repave streets, either upon petition of a majority of the property owners, or upon notice of an intention to order the work. These proceedings were instituted upon the report of a ■committee of their number, appointed to examine the street in -question. A resolution of the common council was then published, which gave notice of an intention “ to order Broadway repaved forty-two feet wide with first-class Medina sandstone pavement, from Fillmore Parkway easterly,” etc., and the engineer was therein directed “ to prepare plans and specifications and advertise for sealed proposals to do said work,” etc. A corporation known as the “ Buffalo Eastside Street Railway Company" was operating, at the time, a surface railroad in Broadway, under grant of the common council authorizing it to lay its tracks, etc. Its charter provided that the company should keep the surface of the street between -the rails, whether paved or unpaved, in •good and proper order and repair*. Pursuant to the resolution of the common council, the city engineer advertised for sealed bids, ■or proposals, for the work, and the advertisement contained a notice that plans, specifications and quantities could be seen at his office, ana described the work as being “ for repaving Broadway forty-two feet wide with first class, etc., pavement * * * in accordance with the plans and specifications on file in the engineer’s office.” The engineer, thereafter, reported to the common council several proposals received by him, and, thereupon, that body passed a resolution, which determined the amount of expense for the improvement of Broadway “ in accordance with plans and specifications on file in the engineer’s office ” at the sum of $40,270; that being the amount of the lowest bid reported; and the city assessors were directed to make an assessment of that sum upon the real estate benefited “ in proportion to benefits resulting thereto.”

A resolution was passed at the same session ordering the work done “in accordance with plans and specifications on file, etc.” Subsequently a resolution was passed directing the engineer “ to contract with Albert Krause for paving Broadway forty-two feet wide with first-class, etc., pavement * * * at his bid of $40,270, it being the lowest bid.” The contract as made excluded from the work of paving a space of five feet between the rails of the single track then in operation by the railroad company upon that part of Broadway. Upon the trial it was conceded that “ the ■specifications for the improvement in question, made and filed in the engineer’s office, excluded the space between the railway track from the space to be paved, and such space so excluded was not paved by the city, or any cost thereof included in the assessment in question.”

The plaintiffs have argued upon the proofs that the engineer in making plans and specifications did not obey his instructions; inasmuch as he omitted five feet of the forty-two feet in width mentioned in the resolution of intention; and that he disregarded the direction as to contracting for the work, “ inasmuch as he contracted for the repavement of thirty-seven feet of Broadway, instead of forty-two feet.” Hence, they say, the proceedings were without jurisdiction, and the assessment consequently was void. The resolution authorizing the engineer to contract with Krause for the repavement, standing alone, if its language is read with literal exactness, would call for the repavement of the street in its whole width of forty-two feet. It must, however, be read and interpreted in connection with the proceedings preliminary and leading up to its passage. Those proceedings had their inception in the resolution •expressing the intention to repave and referring it to the city engineer to prepare plans, etc., and to advertise for proposals to do the work. Plans were made and public notice was duly given of their being on file, and that the work of repavement was to be in accordance with them. The proposals for the work were based upon them, and the common council determined upon their basis and upon the proposals the expense and the requisite assessment, and resolved to do the work under a contract between the city engineer and the lowest bidder. We think that the mention of the forty-two feet in width of Broadway, in the resolution of intention to repave, was merely descriptive of the width of the street from curb to curb, within which the work was to be done, and that it was not directory as to the amount of repavement to be done. But, assuming the contrary view, then the subsequent ordering of the work to be done in accordance with the engineer’s plans, which omitted the five feet between the rails of the car track, was a ratification and adoption of his plans for the work, and was competent.

The advertisement of the making and filing of the plans was á notice, with which every one interested was chargeable. If a departure from the original intention of the council, it was nevertheless publicly notified and with no possibility of prejudice from fraud or collusion. If the common council possessed the power to order a repavement of the street, no reason is apparent why they might not adopt and authorize the plan of the city engineer; which contemplated the exclusion of so much of the surface of the street as was within the car tracks. Whether the exclusion was customary in such cases, as it was found by the trial court, or whether the railroad company was considered to be obligated by its charter to keep that portion of the street surface in order and repair and the city relieved therefrom, is not very material to our determination. Whatever was done by the engineer in carrying out the direction of the common council, with respect to the contract for the work, had reference to a plan as to details and as to quantities for the work which was publicly advertised and which provided for a repavement of thirty-seven feet of the street only. If the correctness of our views in this respect might be doubted, still the plaintiffs are not in any position to complain. The contract was awarded to the lowest bidder upon the plans and specifications, and it was expressly conceded that no cost for paving the excluded five feet of street surface was included in the assessment made. They were without any ground for asserting a grievance. If, technically, they ■could be deemed to have shown an irregularity in the proceedings of the city officers, the absence of any showing of substantial injury to them in consequence was necessarily fatal to their appeal to a court of equity.

The engineer did not, as the general term opinion suggests, .dispense with any essential requirement imposed upon him by the common council. It was referred to him to prepare the plans and specifications for repaving; and the common council, obviously, must have known what they called for. At any rate, they must be presumed to have known them when they acted upon the engineer’s report by ordering the work at a certain cost and in accordance with his plans. Thus, if there was, as it is argued, a modification or change in the original intention, the ratification and adoption by the common council were equivalent to a previous authorization by them to do the work in that way. In these respects this case differs from cases referred to by the learned -general term, where some essential step, or some pre-requisite of notice, was wanting and which invalidated the assessment.

The general term opinion further stated as a ground for reversal that the assessors adopted an erroneous principle in assessing for benefits. All that appears in the case to justify the opinion in that respect is the evidence of a witness who was one of the board of assessors. He stated that the lands on the north side of Broadway were assessed a little more in amounjb than those on the south side, and gave, as one of the reasons which influenced them, that there was no street car track on the north half of the street; the railroad company having constructed only one of its authorized tracks and that upon the south half of the street. We think there was not an error in the principle of assessment which would warrant an avoidance of the assessment. The assessors were to assess for benefits, and it was competent for them, in the exercise of their judgment, to adjudge the property on the north side in fact benefited by the improvement to a greater extent than the land on the opposite side of the street There existing facts for their consideration and for the exercise of a judgment as to amount of benefits, their action in assessing was conclusive.

The further ground for the avoidance of this assessment advanced by the plaintiffs, that the assessors’ notice of the completion of the roll was not published in five successive numbers of the official paper of the city, is untenable. The omission relied "upon related to the Sunday edition of the Buffalo Courier. The finding of the trial judge was that the edition published upon each .secular day of the week was the official paper called for by the company’s contract. The evidence justified the finding, and showed that the Sunday edition, though numbered consecutively with the week day issue, was furnished and sold under different terms from the week day edition.

Nothing else in the case, to which our attention is called, warranted a reversal of the special term judgment, and our consideration of this case has led us to the conclusion that the order of the general term should be reversed, and that the judgment of the special term should be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: O’Brien, J.

license: Public Domain

text:
    Peter W. Gallaudet et al., App’lts, v. Charles W. Kellogg et al., Resp’ts.

      (Court of Appeals,

      Filed June 7, 1892.)

    ■Contract-Variance.
    Plaintiffs sued to recover commissions claimed to have been earned under a paroi contract to aid defendants in procuring a contract to build a bridge. It appeared on the trial, that before the latter contract was signed, the parties hereto agreed upon a written statement which set forth their understanding of the agreement, which provided that plaintiffs should give defendants financial aid by selling bonds, and were to take their commissions in instalments as the bonds were sold, and the proceeds turned over. Plaintiffs’ representative testified that there was but one contract, and that the writing was intended to evidence it. Held, that there was a fatal variance, and that the complaint should have been dismissed.
    (O’Brien, Peckham and Maynard, JJ., dissent.)
    Appeal from judgment of the supreme court, general term, first -department, overruling exceptions and directing dismissal of -complaint.

      G. Elliott Minor, for app’lts; Joseph H. Choate, for resp’ts.
    Judgment affirmed, with costs, on opinion of general term.

       Affirming 40 St. Rep., 914.

   O’Brien, J.

(dissenting.)—On the 27th of August, 1886, the defendants, under the name of the Union Bridge Company, secured .the contract for the construction of the bridge across the Hudson River at Poughkeepsie, for which they were to be paid two million dollars. The contract has been performed by the defendants and they have been paid the stipulated compensation. 'This action is based upon the allegation that the plaintiffs were instrumental in procuring the contract for the defendants and for which services the defendants agreed to pay the plaintiffs the sum -of $100,000. The complaint avers that the plaintiffs and defendants entered into an agreement, by the terms of which the plaintiffs promised to assist, further and aid the defendants in procuring the contract for the construction of the bridge, and the defendants, in consideration thereof, promised to pay the plaintiffs for such services, in the event of procuring the contract, the sum above mentioned. That in consequence of the services, aid and influence of the plaintiffs to that end, the contract was awarded to the defendants, but that they have not paid to the plaintiffs the compensation for the services promised and neglect and refuse to pay the same. At the close of all the evidence the trial judge directed a verdict for the defendants, to which the plaintiffs excepted. There is no question made as to the legality of the contract upon which the action is based, the only point of controversy being, whether the agreement alleged was in fact made. In reviewing the judgment, the plaintiffs are entitled to the most favorable view that can be taken of the evidence in support of their claim, and if there were any disputed questions of fact in the case upon which the plaintiffs had given evidence competent and sufficient to submit to the jury, we must hold that the direction was erroneous. The judgment cannot be upheld unless it is made to appear that, within settled rules applicable to cases where a nonsuit is ordered or a verdict directed, there was no evidence of the contract alleged given sufficient for the consideration of the jury.

There is no dispute as to the fact that for several months prior to August, 1886, active negotiations were on foot and pending for consummating two contracts in reference to the construction of this bridge. The first and most important one, and that upon which the other depended, was the contract between the plaintiffs and the Manhattan Bridge Building Company for marketing the bonds of the Poughkeepsie Bridge Company, which were to be or had been issued, to the amount of five million dollars, and from the sale of which bonds, alone, the money was to be procured for the expense of the enterprise. This contract was completed on the same day and at the same place as the contract by the defendants for performing the work and furnishing the materials. The plaintiffs by this contract undertook to place the bonds and furnish from the proceeds the funds by means of which the contractors were to be paid. They were also to make advances to the contractors, when money was not on hand from sales of bonds, but of their own funds. For these services and advances the plaintiffs, were to be paid commissions and interest in cash and in stock of the bridge company to a large amount, but the Manhattan Bridge Building Company were given the power to terminate this contract on ten days notice, and this right was actually exercised after the plaintiff had expended several thousand dollars in advertising and preparing to market the bonds, and before he had sold to exceed $300,000 of them.

But during all the negotiations it seems to have been assumed by all the parties that the plaintiff was to have this contract, and that as a banker and broker he was the person to whom all the parties looked to raise the money out of which the contractors, whoever they might be, were to be paid and the bridge built It is obvious that the position which the plaintiff occupied in this respect gave him great power and influence in all matters relating to the enterprise, and it would seem quite reasonable to suppose that he could be, if he so desired, of great assistance to the defendants in procuring the contract for construction and, from the plaintiff’s version of the transaction, the defendants were willing to pay for this assistance and for the influence which the plaintiffs were in a position to exercise, with respect to the disposition of the contract for building. There is evidence in the case tending to prove that some three months prior to the contract of August 27, 1886, there was a verbal agreement made between the plaintiffs and defendants to the effect that the plaintiffs would aid and assist the defendants in procuring the construction contract and the defendants, in case they succeeded in procuring the same, would pay plaintiffs for their services in that respect a commission of five per cent on the price, up to one hundred thousand dollars. There is evidence also that the plaintiffs interested themselves with the promoters of the enterprise, in behalf of the defendants, and that they used their position and their powers of persuasion for the purpose of procuring the contract for the defendants. They told some of the parties who had the power to award the contract that if they, the plaintiffs, were to undertake the sale of the bonds, they wanted the construction contract to go to the defendants. lienee there was evidence in the case tending to show that the plaintiffs at least partially performed the agreement to aid and assist the defendants in procuring the contract. If it was material to determine how far the actual award of the contract to the defendants was due to the efforts of the plaintiffs in that direction, the question was one for the jury.

About two hours before the two contracts above mentioned were executed, and while they were awaiting the signature of the parties in the office of the attorney by whom they were drawn, one of the defendants came to the plaintiffs’ office by request for the purpose of giving some written evidence to the plaintiffs of the agreement, under which the defendants were to compensate the plaintiffs for their services and influence in procuring the construction contract. This agreement, though partially performed, if the testimony of the plaintiff is to be accepted, still rested in words and was not evidenced by any writing whatever. The plaintiffs informed the defendants that they wanted some written memorandum to show what the actual agreement was. When Mr. Clarice, of the defendants’ firm, called at the plaintiffs’ office both he and Mr. Gfallaudet were in a hurry to meet their appointment to attend at the office of the attorney where the construction contract and that for marketing the bonds, both of which were then drawn, were to be executed. The former on coming into the office called for writing materials and immediately drew and signed the following paper :

“ The Union Bridge Company agrees to pay P. W. Gfallaudet A Co. a commission of five (5) per cent up to the amount of one hundred thousand dollars ($100,000) to be deductedpro rata from each cash payment to the Union Bridge Co. from the money received from sale of bonds of the Poughkeepsie Bridge Co. for assisting, furthering and aiding said Union Bridge Company in the financial arrangement necessary to complete said bridge within the specified time of contract.
“ Kew York, August 27, 1886.
Union Bridge Co.,
“ Witness: W. B. Cox.” “ per Thomas C. Clarke.
St. Bep., Yol. XLV. 94

It will be seen that the consideration expressed in this instrument for the payment of $100,000 to the plaintiffs is not the' services rendered or to be rendered in aiding and assisting the defendants to procure the construction contract, but “ for assisting, furthering and. aiding said Union Bridge Company in the financial arrangements necessary to complete said bridge within the specified time of contract,” and the defendants claim that the promise was wholly dependent upon the performance of the contract by. the plaintiff to place and market the bonds, and as that contract was terminated by the Manhattan Bridge Company, the other-party to it, and that as no financial aid could be or was rendered by the plaintiffs to the defendants, no part of the promised commission ever became due to the plaintiffs.

The defendants claim that this writing correctly states the terms of the only contract they had with the plaintiffs for the payment of a commission up to one hundred thousand dollars, and upon this point the defendants succeeded at the trial. The disposition of the case in this court must depend entirely upon the effect which, under all the circumstances disclosed, should be given to this paper. The general rule invoked by the learned counsel for the defendants, that all oral negotiations are merged in a subsequently executed written contract concerning the matters which were the subject of the negotiations, cannot be questioned. But, here a valid contract without writing had been made, according to the plaintiff’s testimony, months before, and existed prior to and independent of the execution of the paper. Not only had the agreement been made but it had been partially, if not substantially performed, if the plaintiffs’ claim is sustained as matter of fact. The formal execution of the written contract for the construction of the bridge was all that remained to be done before-the commissions were earned or payable, but the service for which the commission was to be paid had been entered upon and performed before. In such a case, where parties enter into a valid oral contract, and it has been wholly or partially performed,, mutual rights and obligations spring up that are not merged in or obliterated by a subsequent writing made and signed, as in this case, by one of the parties, for the purpose of furnishing written evidence of the terms of the previously existing oral agreement, unless the writing is accepted by both parties as embodying what before existed only in verbal promises, and was intended to take the place of the verbal agreement The rule that all paroi negotiations are merged in the writing does not apply to a case where a previously existing verbal contract has been acted upon and one of the parties subsequently signs and delivers a paper purporting to embody what before rested in paroi. Beach v. Raritan & Del. Bay R. R. Co., 37 N. Y., 462-3 ; Bostwick v. B. & O. R. R. Co., 45 id., 712; Guillaume v. Gen. Trans. Co., 100 id., 491; Brigg v. Hilton, 99 id., 517; Swift v. P. Mail S. S. Co., 106 id., 219; 8 St. Rep., 602; Routledge v. Worthington Co., 119 N. Y., 592 30 St. Rep., 195.

If the plaintiffs’ testimony was accepted by the jury they had a verbal contract which was perfectly valid, and which had been performed on their part They had done the things they had agreed to do, and the contract induced by their efforts was awaiting the signature of the parties. When signed, the plaintiffs’ work was completed. If it was not signed their services counted for nothing, because the compensation was contingent upon success. But the contract was made when the minds of the parties met, and performance on the part of the plaintiffs commenced when they set themselves about using the efforts and influence contemplated, with a view to securing the contract. Now the plaintiffs having gone so far, wanted some evidence in writing of the agreement They were in the power of the defendants because they could not compel them to give any writing, but they might rely on the verbal agreement, and prove that, when the time arrived, as best they could. One of the defendants drew and signed the paper above referred to. The plaintiffs say it does not correctly state the terms of what had been agreed upon before. The defendants, in failing to deliver a writing correctly stating the terms of the agreement, and in delivering one in which these terms were misstated, could not by that act alone deprive the plaintiffs of the benefit of the agreement. The paper made and delivered by the defendants alone, under such circumstances, is not conclusive as to what the contract was, unless it was intended by both parties as the final repository of the agreement, and accepted as* such by the plaintiffs. This is the turning point of the case. The plaintiffs testify in substance that they did not accept the paper in that sense, but received and kept it as all or at least the best they could get Mr. Clarke, of the defendants’ firm, who drew the paper, said, according to the plaintiffs’ testimony, that he did not want to state in the writing the fact that the commissions were to be paid for assisting in procuring the contract, but that he intended to carry out his previous verbal promise in that regard. There is evidence in the case from which it could be found that neither party present when this paper was made and delivered understood that it contained a correct statement of the consideration and terms of the existing verbal agreement. Still, if the plaintiffs actually accepted the instrument as the final consummation of the verbal arrangement, and as embodying the evidence of the defendants’ obligations, then all previously existing verbal agreements on the subject must be deemed to be modified in accordance with its terms, and the plaintiffs were bound by it.

The learned trial judge held as matter of law that the plaintiffs accepted the instrument as a complete substitute for the previously existing verbal understanding. The defendants denied that any verbal agreement was ever made to pay the plaintiffs anything for aiding in procuring the contract, and the proof on their side was to the effect that the paper contained the whole contract between the parties and was received and accepted by the plaintiffs as such. It may be that the great preponderance of proof on this and on the other questions in the case is on the side of the defense. The only point that we are now concerned with is whether there is any evidence on the part of the plaintiffs tending to show that the paper was not so aeeepted, and we think there is. As it appears in the record, it is not free from apparent contradictions, but its construction, weight and effect was for the jury. The paper could not be substituted for the verbal agreement, if it existed, unless such -was the intention of the parties, and on this point the evidence was not so conclusive as to warrant the court in disposing of the question as one of law.

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

Judgment affirmed, with costs, on opinion of general term.

Earl, Ch. J., Andrews, Finch and Gray, JJ., concur. 0!Brien reads for reversal; Peokham and Maynard, JJ., concur.


author: Per Curiam.

text:
    Laura F. Bradhurst, App’lt, v. Augusta C. Field, Resp’t

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    Will—Evidence.
    Where the intention of a testator is plainly evinced in language free from ambiguity, evidence is not admissible to show that his intention was different from that plainly expressed in the will itself.
    Appeal from judgment entered on decision of the court at special term.

      J. F. Kernochan, for app’lt; G. B. O'Connor, for ex’rs, resp’ts; JD. P. Hays, for resp’t Field; 0. A. Jackson, for respts M. E. Jackson et al.

   Per Curiam.

The construction of the will of Thomas 0. Bradhurst was before this court on an appeal from judgment sustaining a demurrer to the complaint, and the decision of that appeal we think disposes of the question presented to us. 36 St. Rep., 214. Mr. Justice Daniels, in delivering the opinion of the court after a review of the authorities, says: “ But neither of these authorities nor the principle which they maintain will authorize the court to proceed any further than to discover and follow the testator’s intention. Here that has been plainly evinced in language which is free from.ambiguity, and it was that the plaintiff should receive from the trustees the sum of $10,000, and no more; and that was the conclusion indicated when the case was upon another occasion before this court, the decision of which is contained in 10 N. Y. Sup., 452 ; 32 St. Rep., 430.”

As the intention of the testator is plainly evinced in language which is free from ambiguity, the court below would not have been justified in receiving any evidence to show that his intention was different from that plainly expressed in the instrument itself. There was, therefore, no error in refusing to receive the testimony offered by the plaintiff, and the court below was clearly right in the determination at which it arrived.

The judgment should be affirmed, with costs to the executor and to the guardian.

Yan Brunt, P. J., O’Brien and Ingraham, JJ., concur.


text:
    Nathaniel Sleeman, App’lt, v. Lewis Hotchkiss et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    Costs—Waives.
    A plaintiff by appealing from a judgment recovered against him for costs thereby waives all right to afterwards move for relaxation of such costs.
    Appeal from order denying motion for re-taxation of costs.

      JR. J. Moses, Jr., for app’lt; Ii. Major, for resp’ts.
   Per Curiam.

Were it not for the fact, of which we are bound to take notice, that the appeal from the judgment herein has been argued and decided and in such decision a modification directed to the extent of striking out the allowance, we are of opinion that we might consider the appeal from the order denying the re-taxation upon the merits. But the appellant having argued his appeal from the judgment, and such appeal .having been decided, it seems to us that he has thereby waived all right now to take the objection in reference to the taxation of costs.

The appeal should therefore be dismissed, without costs.

Van Brunt, P. J., O’Brien and Ingraham, JJ., concur.


author: Per Ouriam.

text:
    Frederick E. Whitney, Resp’t, v. Imogene F. Orr, App’lt

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    Mabbied women—Evidence.
    In an action against a married woman for work done in printing a magazine under a contract with her husband, plaintiff did not prove that defendant was interested in said magazine; that she was doing any business or authorized her husband to act for her, or that she ever signed the note for work on a prior number, or that the person plaintiff saw at the husband’s office in relation to it was the defendant. Held, error to direct a verdict for plaintiff.
    Appeal from judgment entered on verdict of a jury at circuit

      G. G. Comstock, for app’lt; A. Murphy, for resp’t
   Per Ouriam.

There is no evidence in this case showing that the defendant had anything to do with the World Traveler Gazette, or that she was carrying on any business, or had ever authorized her husband, Charles H. Orr, to act for her, or make any contract for her. It does not appear that the contract for the work, to recover for which this action was brought, was made in her name, and there is no evidence to justify the finding that the defendant ever signed the note given for the work done by the plaintiff’s assignor for printing a prior number of the Gazette, or that the person with whom the plaintiff had the interview at the office, Ho. 120 Broadway, in relation to the note given for the work done on the prior number was the defendant in this action.

The plaintiff failed in any way to connect the defendant with the business carried on at 120 Broadway, or with the publishing of the periodical, or with the work in question.

We think, therefore, that the evidence was insufficient to justify the court in directing a verdict for the plaintiff.

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

Van Brunt, P. J., O’Brien and Ingraham, JJ., concur.


author: Lawrence, J. Ingraham, J.

text:
    James N. Platt, Trustee, Resp’t, v. Lizzie Mickle, Impl’d, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    TVill—Heirs at law—Widow not included in.
    In the absence of words in a will showing a different intention, a devise or bequest to the heirs at law and next of kin of a person named does not include the widow of such person.
    Appeal from judgment of special term, construing will. The facts appear in the opinion of the special term, as follows:
   Lawrence, J.

I am of the opinion that the two sons of George S. Mickle are entitled to the whole of the principal fund now in the hands of the plaintiff, as trustee, under the last will and testament of Rachel Miller, deceased, and that the defendant Lizzie Mickle, who was the third wife and is the widow of George B. Mickle, is not entitled to any portion thereof.

The will of Rachel Miller, who died on the 7th of October, 1848, contained the following provisions:

“ Fourthly, I give, devise and bequeath to my grandson, George Benjamin Mickle, the income, rents and profits of my store and lot of ground known as number 110 Water street, in the city of Mew York, with its appurtenances, to be received by my said ■executors and trustees and applied to his use for and during his natural life. And I do order and direct that the legal estate, title and interest in my said store and lot of ground number 110 Water street, so as aforesaid given to the said executors and trustees, shall cease and determine immediately upon the decease of my grandson, George Benjamin; and I thereupon give and devise the said store and lot of ground number 110 Water street in said city to such person or persons as shall then be the heirs-at-law of my said grandson, respectively, in such parts, shares and proportions as such heirs would have been then respectively entitled thereto and therein by law if my said grandson, George Benjamin, had been seized thereof in fee simple at the time of his death as an inheritance on the part of his mother, and he had died intestate, and they had inherited the same from my said grandson. Fifthly. All the rest and residue of my estate, both real and personal, I give, devise and bequeath as follows, to wit: The rents, issues, dividends, interest and profits of the said residue bf my estate to be received by my said executors and trustees, and as to one-fourth thereof to be applied to the use of my said grandson, George Benjamin, for and during his natural life And I do order and direct that the legal estate, title and interest in the said ■one-fourth of the rest and residue of my estate, both real and personal, and the interest and profits thereof, so as aforesaid given to the said executors and trustees, to be applied to the use of my said grandson for life, as aforesaid, shall cease and determine immediately upon the decease of my said grandson, George Benjamin, and I thereupon after his decease give, devise and bequeath all his said one-fourth part of the said rest and residue of the said trust estate then being in the hands of my said executors and trustees, the survivor or survivors of them, their heirs, legal representatives or successors, to such person or persons as shall then be the heirs-at-law and next of kin of my said grandson, George Benjamin Mickle, respectively, in such shares and proportions as, having regard to the form in which said estate shall then exist, such heirs and next of kin would have been then respectively entitled thereto and therein by law if my said grandson had been seized thereof in fee simple as an inheritance on the part of his mother, or possessor of the same, and he had died intestate, and they had inherited or become entitled thereto from my said grandson, George Benjamin Mickle.”

The widow, Lizzie Mickle, cannot be considered either as an heir at law or as one of the next of kin of her husband. The cases of Keteltas v. Keteltas, 72 N. Y., 312; Murdock v. Ward, 67 id., 387; Luce v. Dunham, 69 id., 36, and Tillman v. Davis, 95 id., 17, if there could have heen any doubt upon this subject, are decisive of the question.

In Keteltas v. Keteltas, 72 N. Y., 312, the provision in the will in question was as follows: '

“ I direct my executors to apportion, divide and pay the rest, residue and remainder of my estate, after providing as above directed, 'to, between and among my next of kin, according to the statute of the state of New York now in force concerning the distribution of personal estates of intestates, in like manner as though I had died intestate.”

Earl, J., said: The primary object in construing wills is to. ascertain the intention of the testator, * * * but the intention is not a matter of speculation or arbitrary conjecture. It is. sought for in the language used, and when language or a certain collocation of words has once received judicial construction, precedents are formed which are followed in later cases. It is a general rule of construction that when a testator uses technical , words he is presumed to employ them in their legal sense, * * The important words to be construed here are 1 next of kin.’ * * * There is nothing in the other clauses of the will which throws any light upon this, and the language used in this must therefore be construed by itself. The objects of the testator’s bounty in this clause were his next-of kin, and there is nothing in the context which shows that he intended to include his widow. That she is therefore excluded is no longer an open question in this court In Murdock v. Ward, 67 N. Y., 387, * * * the claim was made there as here that the widow was included in the term next of kin, and it was held there, after a review of many authorities, that as there was nothing in the context to show that the widow was intended to be included, the words next of kin must have their primary meaning and include only blood relations. * * That case was subsequently followed in Luce v. Dunham, 69 N.Y., 36, where the residuary estate was disposed of in the following language: I give, devise and bequeath, and do desire and will that the same shall be divided among my heirs and next of kin in the same manner as it would be by the laws of the state of New York had I died intestate.’ The claim of the widow to share in the personal estate as one of the next of kin was again rejected. In both of the cases cited it was held that the language used in connection with the words ‘next of kin,’ relating to the statute of distribution in case of intestacy, did not enlarge the meaning of these words. We can perceive no material distinction between the language used in those cases and that used in this.”

In Tillman v. Davis, 95 N. Y., 17, personal estate was given to the heirs of a person named.

Earl, J., said : “ In this state it has uniformly been held when the question has arisen for consideration in the courts, so far as we are able to discover, that the word ‘ heirs ’ applied to the succession of personal estate means next of kin, and that the words next of kin do not include a widow or husband of an intestate.”

After reviewing the cases above cited, Earl, J., continued: “ These authorities, it seems to me, leave little more to be said. There is no reason for holding the word 1 heirs,’ when applied to personal estate, has a broader or more comprehensive signification than the words ‘ next of kin.’

By the Code of Civil Procedure, the term “ next of kin ” does not include a surviving husband or wife. See §§ 1870 and 2514.

The case of Betsinger v. Chapman, 88 N. Y., 495, does not determine that the term “ next of kin ” primarily includes a widow. It held that those words, as used in the provision of the Revised Statutes (2 R. S., 114, § 9), authorizing the next of kin entitled to. share in the distribution of the estate of a deceased person to commence an action against the executor or administrator, include the widow of the intestate.

That the court did not hold, or intend to hold, that the widow would be included in the term “ next of kin ” or “ heir at law ” as •ordinarily used in wills, statutes, or other written instruments, unless there was something in the context of the instrument under interpretation showing that such inclusion was intended, is apparent from the language used by Andrews, Oh. J., at pages 493-494. I fail to discover any such intention from a perusal of the will of Mrs. Miller, and am, therefore, obliged to adhere to the authorities above cited.

I have read the elaborate briefs presented by the counsel for Mrs. Mickle, but cannot accede to the proposition which he seeks to maintain, that there is anything in the will which shows an intention on the part of the testatrix that the widow of George Benjamin Mickle should, either as “ heir at law or%ext of kin,” upon his death, take any share in the property, real and personal, devised and bequeathed in trust for his use and benefit during his life. The plaintiff is entitled to judgment as demanded in his complaint, and the defendants, Andrew H. and George B. Mickle, are entitled to judgment awarding to them the whole of the principal estate.

Counsel will prepare and hand in findings and a decree in accordance with these views.

Henry G. Harris, for app’lt; J. W. Weed, for resp’t.

Ingraham, J.

There is nothing in the will to construe which this action is brought to show that the testator had a different intention than that expressed by the legal meaning of the words “ heirs at law and next of kin ” as used by him in the will; and the meaning of those words has been settled in this state by the' case of Keteltas v. Keteltas, 72 N. Y., 312.

The able and exhaustive opinion of the learned judge at special term renders any further discussion of the question involved unnecessary, and for the reasons stated by him in his opinion the judgment should be affirmed, with costs.

O’Brien, J., concurs; Van Brunt, P. J., concurs in result


text:
    Charles G. Landon et al., App’lts, v. Mary N. Townshend et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    Ejectment—New Trial—Code Civ. Pro., § 1525.
    This case was twice tried and on both trials plaintiffs succeeded. The first judgment was reversed by the court of appeals, but the latter was affirmed. Held, that three years not having elapsed since the entry of the last judgment, defendants were entitled to a new trial under § 1525 of the Code, irrespective of what they have done in the meantime in respect to appeals, etc.
    Appeal from order vacating judgment in favor of plaintiffs and granting a new trial under § 1525. of the Code.
    Action of ejectment For the facts in the case see 38 St. Bep., 714.
    The case has been twice tried and on both trials plaintiffs recovered judgment. The first judgment was reversed by the court of appeals; but the second judgment, entered in 1891, was affirmed by that court

      W. D. Page, for app’lts; J. Townshend, for resp’ts.
   Per Curiam.

It would appear that the defendant as matter of right was entitled to the order in question. The' only valid judgment which was rendered in the progress of the trial was the last judgment which had been affirmed by the court of appeals, and as a matter of right the defendants were entitled to have this judgment vacated, and a new trial ordered upon the terms prescribed by the Code. Three years not having elapsed from the-time of the entry" of this judgment, it was immaterial what the defendants did in the meantime in respect to appeals or other proceedings in reference to said judgment

There seems to.be, therefore, no reason for disturbing the order appealed from and the same should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., and O’Brien, J., concur.


text:
    Austen G. Fox, Rec’r, Pl’ff, v. James J. McComb, Def't.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    Money had—When action will not lie.
    Where a defendant has received money due to the plaintiff, he claiming it as his own under circumstances in which he has no authority from the plaintiff, and does not act under pretense of such authority, and the payment to him is made in proposed recognition of his title thereto as his own, and does not operate to discharge the payer from his liability to the plaintiff, there is no trust and no implied promise to pay the money to the plaintiff.
    Motion" for new trial on exceptions ordered to be heard in the first instance at the general term, after an order dismissing complaint.

      A. Stickney, for motion; O. A. Strong, opposed.
   O’Brien, J.

This action is brought by the plaintiff as receiver of the Cordova Apartment Association for money received to the use of that corporation by the defendant.

The facts upon which the plaintiff relies to support his cause of action are briefly and fully stated in the. complaint, as follows: That in the year 1882, one Clark, who had subscribed for one share of the capital stock of said corporation, of the par value of $15,000, had paid $10,000 thereon, leaving due and owing by him thereon the sum of $5,000 ; that in December, 1888, the defendant, assuming to be authorized in that respect and to be entitled to receive for and in favor of the Cordova Apartment Association the balance of said subscription due from the said Clark, received $5,000 in cash, money of and belonging to said corporation to the use of said corporation ; that such payment was made by Clark to defendant as and for said balance so due upon his subscription and as and in full for said share of stock in said association, and was so accepted and received by the defendant.

If the facts presented upon the trial had supported these allegations of the complaint, then under the law there would be. no doubt as to the plaintiff’s right to recover. The rule of law as contended for by the plaintiff is correct, that wherever a party has received the property of another,, if it has taken in his hands the form of money, he is liable for that property in an action for money had and received, unless he establishes in himself a superior property right to that specific property. Especially is this the law if he has knowledge that the property is the property of that other party.

In Roberts v. Ely, 113 N. Y., 131; 22 St. Rep., 185, the doctrine is thus formulated: “ That money in the hands of one person to which another is equitably entitled may be recovered in a common law action by the equitable owner upon an implied promise arising from the duty of the person in possession to account for and pay over the same to the person beneficially entitled. * * * No privity of contract between the parties is required, except that which results from the circumstances. The right on the one side and the correlative duty on the other create the necessary privity and justify the implication of a promise by the defendant to do that which justice and equity require. It is immaterial also whether the original possession of the money by the defendant was rightful or wrongful. It is sufficient that the duty exists on his part created by the circumstances to account for and pay it over to the plaintiff.”

The complaint, therefore, stated a good cause of action which, under the rule of law referred to, would have entitled the plaintiff to recover if he had sustained the allegations of his complaint. It will, however, appear upon an examination of the case that no fault is to be found with the plaintiff’s complaint or law, but rather with the absence of the necessaiy facts and proof required to support the cause of action set forth in his complaint. There was no dispute as to the subscription for one share of stock by Clark, and the fact that he paid $10,000 thereon, and that there was due and owing by him to the association at the time he made the payment of $5,000 to defendant that exact amount. The question, however, presented by the denials in the answer was as to whether when the $5,000 were paid to the defendant he assumed to be authorized and entitled to receive the same for and pn behalf of the association, and did receive it in cash, money of and belonging to said corporation; or whether, as contended by the defendant, he received it for his own use and benefit. If the former, under the rule the plaintiff should recover. If it was received by the defendant for his own use and benefit, there is no rule of law that would preclude him from so receiving it and thereafter retaining it

On the part of the plaintiff, for the purpose of characterizing the receipt of these moneys, two instruments, one a bond and the other a release executed by Clark and McComb, were admitted in evidence, and upon this it is claimed that the plaintiff’s theory was supported. If the defendant were compelled to stand or fall upon these papers alone, we are not prepared to say that they would not have presented such a state of facts as would have justified the court in inferring that the defendant undertook to act on behalf of the association, or a state of facts sufficiently strong at least to have justified upon request the submission of the questions of fact to the jury. Thus, the recital of the bond reads as follows: “ Whereas, the said Thomas C. Clark heretofore became the subscriber for one share of the capital stock of the Cordova Apartment Association, a portion of which subscription has remained unpaid until the date of these presents and has now been paid in full by the payment of the balance of said subscription to me, the receipt of which is hereby acknowledged.”

A recital of this character would tend to establish the receipt by the defendant of a specific debt due the corporation, with knowledge on the defendant’s part that he was so receiving it Besides, we have the condition in the bond of the defendant to Clark that he would save him, among other things, from loss for this specific debt due to the corporation.

But these instruments may not be regarded as absolutely conclusive as to the plaintiff’s right to recover as matter of law, because havingjbeen drawn between McComb and Clark individually, and it being necessary to assume that both understood the language employed, the question would be presented whether they were not intended, as between these parties, to be an agreement by which McComb in effect, asserting against "Clark various claims, including the §5,000 unpaid on his subscription, requested payment to him instead of the association, giving him for his security the release and bond of indemnity.

However, the defendant was not compelled to stand on these papers alone. But in this action brought between the plaintiff, who was a stranger to the written instruments, and the defendant, paroi evidence was competent for the purpose of explaining which of the two views as to what was intended by these instruments was the correct one. Such evidence was elicited on the cross examination of Clark. He testified that being himself a trustee of the association, he knew that the defendant was not a trustee or officer of the association. Mor did he intend to pay him the $5,000 assuming him to be such officer or trustee. But on the contrary he testified that the defendant stated that he could not receive the money as the agent of the association. Though it appears in one or two other places in the cross-examination, the circumstances under which the guaranty was given, and the $5,000 paid, are thus stated by the-witness at fols. 64 to 66:

“ I went to him and I said: ‘Mr. McComb, I don’t want any litigation, and I am prepared to withdraw-all my suits if you withdraw yours, and I give up, of course, what I have paid into these associations.’ Mr. McComb said: ‘Mo, I won’t do that, but I will agree to a settlement in full if you pay me $5,000.’ I said: ‘ Why should I pay $5,000 ? ’ He said : ‘ Because you owe me a good deal more than $5,000. There is this suit, your liability as trustee in the first instance, and there are loans and $5,000 that )rou have never paid on your subscription.' I said: ‘I will think that over.’ I went and I did think it over, and I came back and I said to Mr. McComb: ‘ I will pay you this $5,000 provided you will give me a guarantee against everybody,’ and he said he would. He said at that time, ‘ I can’t act for the association but I Suppose you will take my guarantee,’ and 1 said I would, and I took his guarantee.”

The instruments referred to and the testimony of this witness comprise all the evidence in the case; and I have thus at some length referred to it because in it is to be found a solution of the question contested by the parties here, as to whether the $5,000 was received for defendant’s own use and benefit, or whether it was received by the defendant assuming to act on behalf of the association, as cash, money of and belonging to the corporation.

As already said, if it had been paid to him as agent, it would at once have become the money of the association. As we have seen, however, from the testimony we think the learned judge was correct in holding that the proof showed that the defendant received the same for his own use and benefit.

There remains but another question to dispose of growing out of the plaintiff’s claim that even though this may all be true, still the money received by defendant was the money of and belonging to the corporation. It is difficult, however, to see upon what theory this claim can be supported. Clark certainly never had any money of the association. He was at most a mere debtor to it, and the money paid by him to the defendant was his own money. If he chose to pay it to the defendant instead of to the association, he remained neither more nor less a debtor than before. He did not pay any debt previously due from him. The association had lost no right previously vested in it. If an action against Clark would have lain before the payment, it would after-wards.

It is reasonably clear that if McComb was not and did not profess to be the agent of the association in receiving this money, if Clark did not profess or intend to pay it for the association but for himself, if the money paid and received was Clark’s money and not the money of the association, then this theory advanced by the plaintiff cannot be sustained.

As we have already stated, the testimony does not go to the extent of upholding this theory of the plaintiff, but on the contrary fully supports the defense put forth by the defendant that Clark, in the payment of the money, and he, in receiving the same, were acting and assuming to act each on his own behalf.

Under these circumstances the question is presented whether a creditor can recover from a third party money which has been paid by the debtor to such third party instead of himself.

The cases of Patricick v. Metcalf, 37 N. Y., 332 ; Butterworth v. Gould, 41 id., 459; Hathaway v. Town of Homer, 54 id., 656; Decker v. Saltzman, 59 id., 277, and Peckham v. VanWagenen, 83 id., 44, are authorities for the proposition which has been well expressed by Woodruff, J., in Buttenuorth v. Gould, that where a defendant has received money due to the plaintiff, he claiming it as his own under circumstances in which he has no authority from the plaintiff, and does not act under pretence of such authority, and the payment to him is made in proposed recognition of his title thereto as his own, and does not operate to discharge the payer from his liability to the plaintiff, then, and in such case, there is no trust, and no implied promise to pay the money to the plaintiff.

It is unnecessary for us to cite further authorities upon the law, which is well established, and about which, as we take it, the respective counsel do not differ. The contention between them relates to the facts, and after an examination of the case, we are of opinion that the rule as laid down in Butterworth v. Gould, and the other cases cited in line with this last decision, upon the • facts of the case as presented, are controlling in favor of the view that the motion for a new trial herein should be denied, and judgment directed for defendant, with costs.

Patterson-, J., concurs; Van Brunt, P. J., concurs in result


text:
    In the Matter of Catherine E. Valentine, Deceased.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)
    Usury.
    . The claimant loaned money to decedent and took back instruments by the terms of which interest was to be paid at the rate of eight per cent until the loans were paid. Held, that even if that rate was originally inserted because of a loss of two per cent upon drawing the money from the savings bank, yet as the agreement as to interest ran with the contract and extended beyond the period which would indemnify claimant for such loss, it was usurious.
    Appeal by Maggie Gillespie from order of the special term partly overruling and partly confirming the referee’s report.

      W. G. Low, for app’lt; W. G. Roe, for resp’t.
   Per Curiam.

The obligations upon which this claim is sought to be enforced show a loan of money by the plaintiff to the defendant’s intestate for which interest at eight per cent was contracted to be paid.

The testimony before the referee .fails to show that these instruments did not correctly state the actual agreement between the parties, and as the interest to be paid was in exdess of the legal interest the obligations are void. The testimony of the witness Richardt that was stricken out failed to show any other or different agreement, and if considered by the referee could not have changed the force or legal effect of the obligations.

By the terms of the instruments interest was to run at the rate of eight per cent until the loans were paid. Therefore even if the eight per cent was originally inserted because of the loss of two per cent interest upon the drawing of the money from the savings bank, yet the eight per cent agreement ran with .the contract and extended to a period far beyond that which would indemnify the plaintiff for the loss of the two per cent in the drawing of the money from the savings bank. The usurious character of the transaction therefore seems to be clearly established considering all the evidence which was admitted before the referee whether stricken out subsequently or not

The order should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., O’Brien and Ingraham, JJ., concur.


text:
    George Tilles, Resp’t, v. Charles H. Albright et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    Judgment—Confession of—Statement.
    A statement of indebtedness upon which a judgment by confession is entered is sufficient, although it states that the moneys were loaned and advanced in numerous and divers sums between two specified dates, where no uncertainty exists as to the aggregate amount of the loans, and it appears how much is for interest and how much for principal.
    Appeal by Passavaut & Co., junior judgment creditors, from an order denying their motion to set aside a judgment by confession, entered in favor of the plaintiff in this action, upon the ground of insufficiency of the statement upon which the judgment was entered.

      G. M. Pinney, Jr., for app’lts; G. W. Gallinger, for resp’t
   Per Curiam.

The ground upon which the motion was made is the insufficiency of the statement upon which the judgment was confessed. In view of what is held in the case of Harrison v. Gibbons, 71 N. Y., 58, which arose under the provisions of the old Code substantially similar to the provisions of § 1274 of the new Code, which provides as to what is requisite and necessary in judgments by confession, we think that the statement which was made the basis of the judgment by confession in this action was sufficient.

In the case of Wood v. Mitchell, 117 N. Y., 439; 27 St. Rep., 704, referred to by the appellant, it will be found that the statement was essentially different from the one in the case at bar. It was said in the case cited “ The statement is in the highest degree indefinite. The moneys are alleged to have been loaned at various times during a period of nearly two years. There is substantially no information as to the amount of the loans. They may have amounted to $10,000 or $100,000, the indebtedness having been reduced by payments or off sets to less than $5,000. No dates of the loans are given and it is not stated how much of the $5,000 was for interest, and how much for principal.”

In this case, although the statement alleges that the moneys were loaned and advanced in numerous and divers sums between two dates which are specified, no uncertainty exists as to the aggregate amount of the loans, which is therein stated.

It also appears how much of the amount is for interest, and how much for principal.

As the objections made to the sufficiency of the statement in Wood v. Mitchell are not present in this case, we are inclined to think that rather than an authority against, it is one in favor of the sufficiency of the statement upon which the judgment in the case at bar was confessed.

The order should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., O’Brien and Ingraham, JJ., concur.


text:
    Samuel J. Knight, Resp’t, v. Henry S. Vanderbilt, App’lt

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    Arrest—Application for discharge—Code Civ. Pro., § 573.
    Upon application by a defendant to be discharged from arrest under a mandate against him, or to be relieved from imprisonment if he has not been arrested, it is the duty of the court to consider whether reasonable cause has been shown why the application should not be granted.
    Appeal from order denying motion to vacate order of arrest The order of arrest in this case was granted after verdict rendered and was served thirteen days after such verdict Judgment was not entered until after the motion to vacate was made. The motian was upon the ground, of failure to enter the judgment within ten days, under § 572 of the Code.

      John Notman, for app’lt; L.'L. Kellogg, for resp’t.
   Per Curiam.

Section 572 of the Code, under which this application is made, provides that a defendant arrested in a civil action, if the plaintiff unreasonably delays the trial of the action or neglects to enter judgment therein within ten days after it is in his power to do so, must upon his application be discharged from custody if he has already been taken under the mandate of another, or if he has not yet been imprisoned that he be relieved from imprisonment by virtue of such mandate by the court in which the action was commenced, unless reasonable cause is shown why the application should not be granted.

The only application mentioned in the section is the application made by the defendant upon notice to the plaintiff, either to be discharged from custody if he has already been taken under a mandate against him in such action, or if he has not yet been imprisoned, to be relieved from imprisonment by virtue of such mandate, and the provision that the court should grant the order unless reasonable cause is shown applies to this application whether made to discharge him from arrest if in custody, or to relieve him from arrest if not in custody.

We' think, therefore, that it was the duty of the court below to consider whether reasonable cause was shown why the defendant’s application should not be granted, and we concur in the conclusion that in this case reasonable cause was shown and that the application was properly denied.

The order should be affirmed, with ten dollars costs and disbursements.

Yam Brunt, P. J., O’Brien and Ingraham, JJ., concur.


author: Lawrence, J.

text:
    Anna B. White et al., Resp’ts, v. The Manhattan Railway Co. et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    Railroad—Elevated—Consent to operation.
    One of the members of a firm, which was plaintiffs’ predecessor in title, gave a written consent in the name of the firm to defendants to construct and operate the road in front of the premises. Held, that this was a mere license, revocable at will, and that the firm by the sale of the property, and plaintiffs by commencing this action, signified their intention to revoke it.
    Appeal from a judgment entered upon a decision rendered by the special term upon the trial of the issues presented by the pleadings.

      Julien T. Davies and J. 0. Thompson, for app’lts; Leo G. Dessar and Joseph P. Riley, for resp’ts.
   Lawrence, J.

It is quite apparent from the evidence in this case that the plaintiffs’ property and easements have been greatly damaged by the erection of the structures of the defendants. It is insisted, however, that under the consent which was signed by W. N. Seymour & Company, or rather by one of the members of that firm with the firm’s name, all right to any compensation for the impairment of the easements attached to the property described in the complaint was waived and lost. To that proposition we do not accede. We regard the consent which was given by one of the members of the firm in question as being merely a license, revocable at will, and that the co-partners by the sale of the property to the plaintiffs’ testator, and the plaintiffs by bringing this action, signified their intention to revoke it See Wiseman et al., executors, v. Lucksinger, 84 N. Y., 31; Murdock v. The P. P. & C. I. R. R. Co., 73 id., 579 ; Fargis v. Walton, 107 id., 399; 12 St. Rep., 60. It may also well be doubted whether Mr. Brush, the partner who signed the memorandum with the partnership name was authorized to transfer the rights of the other partners. Even if the evidence of the expert Martine, which was excepted to, was, under the authority of the McGean case, 117 N. Y., 219; 27 St. Rep., 337, improperly admitted, we fail to see that it affected the judgment of the justice in finally disposing of the case. We do not think that any error was committed by the learned justice as to the amount of damages which have been sustained by the plaintiffs either as to fee value or as to rental value, and the judgment below will therefore be affirmed, with costs and disbursements.

O’Brien, J., concurs in the result.


author:
Ingraham, J.
      Per Curiam.

text:
    Frederick M. Hill, Resp’t, v. The Knickerbocker Electric Light & Power Co., App'lt.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    1. Corporations—Directors—Disabilities.
    The statutes of this state relating to disabilities of directors of corpora tians have no application to a director of a foreign corporation against which he is proceeding to collect his debt.

      2. Same.
    Such disabilities simply apply to the giving of preferences by the corporation, and not to the ordinary procedure at law taken by a creditor of the corporation, although he may be an officer, for the purpose of securing his debt.
    Appeal from order denying motion to vacate attachment. Action to recover for services rendered to defendant, a foreign corporation, of which plaintiff was a director. The following opinion was delivered at special term:
   Ingraham, J.

The case of Coats v. Donnell, 94 N. Y. 178, is conclusive authority (if any were needed) that the provisions of the Bevised Statutes as to insolvent corporations do not apply to foreign corporations. I know of no provision of law that prevents a director of a corporation from recovering a judgment against the corporation for money due to him, and from using the ordinary remedies to recover the debt.

Motion to vacate • attachment denied, with $10 costs and disbursements.

A. B. Page, for appl’t; J. A. Amundson, for resp’fc

Per Curiam.

It had been held by repeated adjudications that the statutes of this state have no extra territorial jurisdiction long before the case of Coats v. Donnell, 94 N. Y., 168, which merely reiterated that rule. Consequently the provisions respecting corporations, contained in the-Revised Statutes, have no application to the plaintiff in this case, he being a director of a foreign corporation against which he is proceeding to collect his debt.

Neither do the principles adverted to by the counsel for the appellant in respect to the disabilities of directors and trustees of corporations. These disabilities simply apply to the giving of preferences by the corporation, and not to the ordinary procedure at law taken by a creditor of the corporation, although he may be an officer, for the purpose of securing his debt. That such was the rule at common law, seems to be recognized by the court of ap?eals in the case of Throop v. The Hatch Lith. Company, 125 N. Y., 530; 35 St. Rep., 816, the disability of the director in that case being expressly based upon the provisions of the statute.

We think therefore that there was no ground presented for the vacation of the attachment and that the order appealed from was correct.

It has been urged upon the court that the appellant should be relieved from some of the hardships he has suffered arising from the action of the special term in directing a reference upon the motion to vacate the judgment. We are unfortunately unable to relieve the appellant from the burdens which were thus imposed upon him, but because of them the order iri question should be affirmed, without costs.

Van Brunt, P. J., and O’Brien, J., concur.


text:
    Thomas F. Mason, Rec’r, Resp’t, v. Samuel T. W. Sandford, Impl’d, Def't.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    Abatement and bevivob—Laches.
    A motion to revive an action will not be denied on the ground of loches where no injury has resulted or will result to the personal representative in consequence of the delay; no rights have been lost, and no evidence is not obtainable which could have been procured at the time of the party’s death.
    Appeal by the executor of the defendant Sandford from order reviving action and continuing it against him.
    Action brought by the receiver of the Widows & Orphans Benefit Life Insurance Company against the trustees of said company to compel them to account for property and assets alleged to have been diverted and misapplied by them. Defendant Sandford died in 1882. Thereafter the original plaintiff died, and this plaintiff was appointed receiver in his place and moved for revival in 1891.

      P. H. Vernon, for app’lt; W. C. Trull, for resp’t.
   Per Curiam.

The power of the court to grant this order has been settled by the court of appeals affirming the order of this court reviving the action as against the executor of another defendant. See Mason v. Morgan, 121 N. Y., 705; 31 St Rep., 996.

The only question presented upon this appeal is whether the court below should have granted the application in the exercise -of its discretion, or denied the same in consequence of loches in making the motion. The rule as stated by the court of appeals in Lyon v. Park, 111 N. Y, 357; 19 St. Rep., 626, is that “ as an application to the court is necessary to authorize its revival or -continuance, the court, we think, may on the ground of inexcusable loches or where otherwise irreparable injury will be suffered, deny the application.” ■

We think that the facts presented in this case show that the delay in making the application was not such unreasonable loches as would justify a denial thereof. It is not suggested that any injury has resulted or will result to the appellant in consequence •of the delay. Ho rights have been lost; no evidence is not now attainable that could have been procured at the time of the death of the appellant’s testator; and nothing appears to indicate that the appellant has been in any way injured by the failure to revive within a reasonable time after the death of the appellant’s testator.

We think, therefore, that the order was right and should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., O’Brien and Ingraham, JJ., concur.


author: Landon, J.

text:
    Mary E. Goodrich, App’lt, v. Byron D. Houghton et al., Resp’ts.

      (Court of Appeals, Second Division,

      Filed May 31, 1892.)

      1. Lotteries — Agreement to purchase tickets and share results is illegal—Penal Code, §§ 324-334.
    Plaintiff and defendant agreed to each contribute twenty-five dollars and purchase tickets in the Louisiana lottery and divide the prize money. The money was forwarded, and the tickets drew $25,020, which was received by defendant, and he refused to turn over more than one-quarter thereof to plaintiff. Held, that plaintiff could not recover the balance due as the contract for division was part of the entire contract, was made here, and was to be performed here, and such contract was void under the provisions of the Penal Code.
    3. Same—New promise.
    As the defendant bought the tickets in his own name, he received the money, not as a depositary for her use, but as if wholly due to himself, and the division thereof was necessarily a part of the original contract to buy the tickets and divide the prize, and as it would not support a new promise claimed to have been made to bring the money to plaintiff’s house to divide, the latter is remediless.
    Appeal from a judgment of the general term, fourth department, affirming a judgment dismissing the complaint directed by the court upon the trial before a jury at the Oswego circuit.

      W. A. Poucher, for app’lt; Francis M Hamilton, for resp’ts.

       Affirming 29 8t. Rep., 905.

   Landon, J.

The plaintiff seeks to recover money alleged to have been received by the defendant, Byron D. Houghton, to her use, and appropriated by both defendants. The plaintiff and Byron D. Houghton, at Oswego, H. Y.,'agreed that each should contribute twenty-five dollars, and with the total purchase tickets in the Louisiana State Lottery at Hew Orleans, and that each should have one-half the prize money drawn. The plaintiff thereupon delivered twenty-five dollars to said defendant, who, adding twenty-five dollars of his own, sent the fifty dollars by express from Oswego to the State Lottery at Hew Orleans, with an order in his own name for the tickets. The Lottery Company sent him the tickets by express to Oswego. These tickets subsequently drew prizes to the amount of $25,020, which sum was forwarded by the Lottery Company by express to said defendant at Oswego; he received it there and paid one-fourth thereof to the plaintiff, refused to pay more, and he and the other defendant appropriated the three-fourths. The plaintiff by this action seeks to recover an additional one-fourth.

The difficulty with the plaintiff’s case, as clearly shown by the opinion of the general term, is that she cannot prove that the defendants ought to pay her any part of the prize" money, except by proof of the contract, and as it was a gambling contract still ex-ecutory as respects the division of the prize money, the law will not enforce its execution, but will leave the parties where it finds them. Nellis v. Clarck, 20 Wend., 24; Haynes v. Rudd, 83 N. Y., 253; Woodworth v. Bennett, 43 id., 273; Knowlton v. Spring Co., 57 id., 528. Any agreement made in this state to gamble in the legalized lotteries of another state is void in this state. Penal Code, §§ 324-334; 3 R. S., 8th ed., p. 2220, §§ 22, 25, 33, 35, 38, 39 ; 1 R. S., m. p., 665; People v. Noelke, 94 N. Y., 137.

The learned counsel for the appellant does not contest these legal propositions, but contests the assumption of fact that the plaintiff’s case requires her to trace her right to recover through a violation of our law. He contends that lotteries are lawful in Louisiana, and hence the buying of tickets and drawing of prize money are lawful there, and that as the money was lawfully acquired in that state, it was lawfully transmitted to the defendant in this state, and the division of it here would violate no law, and, therefore, defendant’s agreement to divide it was not unlawful. This contention, if sound, manifestly impairs that purpose of our law which seeks to protect the people of this state from participation in the vice and evils of lotteries.

But assuming that every part of the transaction which took place in Louisiana was perfectly valid, and that the laws of this state can in no respect invalidate what was there completed, it is undeniable that the division of the prize money was not made there, but by the contract of the parties was to be made here. The contract for division was part of the entire contract, was made here, and was to be performed here. Its validity must be determined by our law. We undo nothing that has been done in Louisiana; but we refuse to complete in this state any part of the transaction which remains unfinished. The plaintiff cannot recover without resort to the unexecuted part of the contract.

The learned counsel for the plaintiff further urges that after the prize had been drawn, the parties agreed that it should be forwarded by express to the defendant at Oswego, and that he should, upon receiving it, bring it to the plaintiff’s house in that city and there divide it equally, and that that agreement does not involve the original agreement, but merely respects the receipt and division of money which they could command in New Orleans. The defendant did send for and receive the money through the express company. But he did not receive the plaintiff's share as a depositary for her use or in order to deliver it to her. No such question is presented. The defendant had bought the tickets in his own name, and hence received the money as if wholly due to himself.

The consignor of the money imposed no duty upon him to deliver any of it to plaintiff. Grant that the defendant violated his agreement with the plaintiff in taking the title to the tickets in his own name, the court for reasons already stated could not aid the plaintiff in that respect The defendant could, therefore, after the prize was awarded secure possession of the money without the assistance of the plaintiff. When, therefore, he agreed to send for the money by express, and divide it with the plaintiff when obtained, he did so upon no new consideration, but because of the original agreement to buy the tickets and divide the prize. The original agreement thus cannot be kept out of sight, and as it will not support a new promise, the plaintiff is still remediless.

Concurring as we do in the opinion of the learned general term, further discussion is unnecessary.

Judgment affirmed, with costs.

All concur.


author: Haight, J.

text:
    The City of Buffalo, App’lt, v. George H. Chadeayne, Resp’t.

      (Court of Appeals, Second Division,

      Filed June 7, 1892.)

    1. Municipal corporations—Constitutional law—Common council cannot RESCIND BUILDING PERMIT WITHOUT NOTICE.
    The common council granted permission to defendant to erect seven frame wooden houses within the fire limits and he having excavated for the cellars and laid a portion of the walls the common council, without not-ce to defe idant, rescinded the former resolution. Subsequently and two days before its approval by the mayor, oral notice was given defendant of the passage of the resolution. He continued the construction of his buildings and they were nearly finished when a notice of the resolution was served on him. In this action judgment was granted for the penalty provided in the ordinance. Held, error, that the permission and the entry upon the construction of the buildings and incurring liabilities for work and material vested a property right in defendant and no power existed in the common council to deprive him of the same.
    2. Same.
    The provision of the charter in relation to fire limits was not intended to give the common council the power to deprive persons of their buildings which had previously been erected, or of those which should be thereafter erected in whole or in part with the permission of the common council, and its power was limited to the prevention of the erection of wooden buildings in the future without its permit.

      Appeal from a judgment of the superior court of the city of Buffalo, reversing a judgment entered upon a verdict directed by the court upon an appeal from the "municipal court of that city, in which a new trial was demanded.

      Philip A. Laing, for app'lt; Giles E. Stillwell, for resp’t.

       Affirming 27 St. Rep., 60.

   Haight, J.

This action was brought to recover a penalty for an alleged violation of an ordinance pertaining to the erection of wooden buildings within the prescribed fire limits of the city of Buffalo.

On the 11th day of July, 1887, the common council of the city passed a resolution granting permission to the defendant to erect seven frame wooden houses upon premises owned by him and specifically described. This resolution was duly approved by the mayor, and thereupon the defendant entered into a contract for the materials with which to make such structures. He made excavations for the cellars and laid a portion of the walls prior to the 1st day of August. On that day the common council, without notice to him, passed a resolution which it is claimed rescinds the former resolution. The last resolution was approved by the mayor on the 15th day of August, and on the 10th day of November a copy thereof was served upon the defendant. Oral notice was given to him of the passage of the resolution on the 2d day of August, prior to its approval by the mayor. He, however, continued the construction of his buildings, and at the time the notice, with a copy of the resolution, was served upon him in November, several of the buildings had their roofs on, and the rest were in process of construction. This action was then brought for the penalty provided for in the ordinance, and resulted in. the judgment which is the subject of this review.

The charter of the plaintiff (chap. 519 of the Laws of 1870) provides that “ the city shall have power by its common council, from time to time, to enact ordinances, * * * to prescribe the limits within which wqoden buildings shall -be erected, and the manner in and material of which all buildings shall be constructed within such limits. Every building erected or placed contrary to any ordinance passed under the last above provision, shall be deemed a common nuisance and may be abated as such.” Title 3, § 8, subd. 4.

Pursuant to this provision, the common council enacted ordinances, among which we find the following:

“ No person shall, without permission of the common council, erect, place or move any building constructed in whole or in part of wood, within the limits of the city of Buffalo, as defined by § 2 of title 1 of the charter of said city.” Ordinances, chap. 5, §20.

The defendant's buildings are within the fire limits as prescribed by the ordinance. He, therefore, had no right to construct them without the permission of the common council. Such permission, as we have seen, was granted on the 11th day of July, 1887, and thereby he acquired the right to proceed with the construction of his buildings and to possess and enjoy the comforts they might afford. As soon as he had entered upon the construction of the buildings and incurred liabilities for the work and material, he had a property interest in them. To this right he was entitled to protection. People v. O'Brien, 111 N. Y., 1—62 ; 19 St. Rep., 173; Matter of U. E. R of Brooklyn, 112 N. Y., 61-75; 20 St. Rep., 49S; People ex rel. Man. Sav'gs Inst. v. Otis, 90 N. Y., 48-52; Stuart v. Palmer, 74 id., 183 ; Detroit v. D. & H. Plank Road Co., 43 Mich., 140.

It is claimed by the appellant that a municipal board may reconsider its action at any time before private vested rights have resulted from such action, and that the defendant could not acquire vested rights as against the police power of the state or municipality.

For the purposes of this case we may concede these propositions. As to the first, it appears, as we have seen, that the defendant had entered upon the construction of his buildings, had made contracts and incurred liabilities thereon, before the common council attempted to reconsider its action giving him a permit to construct of wood. A private property right had, therefore, vested in hi:n prior to the rescission of the resolution.

As to the second, his right may be subject to the police power of the state, but the difficulty is that the state has not seen fit to deprive him of such right by the exercise of such power, nor has it delegated the same to the municipality. The state has given to the municipality power to prescribe the limits in which wooden buildings shall not be erected. This pertains to the future, and not to existing wooden buildings. The ordinance to which we have referred provides that no person shall without permission of the common council erect any building in whole or in part of wood within certain limits. This has reference to buildings that shall be erected in the future, and not to existing buildings, or to those erected with the permission of the common council. So that neither the charter nor the ordinance authorizes it to interfere with existing buildings or those constructed with its permission. There is, consequently, no power given to the common council to deprive the defendant of any vested property rights in the buildings. If the common council could interfere and rescind its permit after a building is partially constructed, it could also rescind after it was fully completed. It would consequently follow that every person who in the past has constructed wooden buildings with the permission of the common council is now liable to have his permit revoked and his buildings declared a nuisance and abated as such.

The restrictions authorized by the provisions of the charter under consideration are for the purpose of the prevention and ex-tinguishment of fires. It has no reference to buildings that may become a nuisance by reason of their becoming dangerous to the public.

Having in view the purpose for which the provision was enacted, it seems to us clear that it was not intended to give to the common council the power to deprive persons of their buildings which had previously been erected, or of those which should be thereafter erected in whole or in part with the permission of the common council, and that its power is limited to the prevention of the erection of wooden buildings in the future without its permit.

The resolution adopted by the common council on the 1st day of August is as follows:

“ That the resolution adopted by this council on the 11th day of July last granting permission to George H. Chadeayne to erect seven frame houses * * * be, and the same is hereby rescinded, upon filing a good and sufficient bond to save the city harmless from any liability for damages on the part of the city by reason of this resolution.”

It will be obsérved that the resolution does not rescind the resolution of July 11th, only upon condition of the filing of a bond, etc. The bond must be a good and sufficient one. The amount of the penalty is not given, neither is there a. provision for its approval or direction as to where it should be filed.

On the 13th day of August thereafter a bond was executed by L. Yan Bokkelen and C. F. Dunbar, in a penalty of $2,500, approved by the mayor and filed with the comptroller, but no copy of such bond or notice of its filing appears to have been served upon the defendant. It may be that it is such a bond as was contemplated by the common council, but whether it is or not we are powerless to determine. Inasmuch as the common council had required a good and sufficient bond to be given as a condition upon which'the resolution to rescind the permit given on July 11th should become operative, without providing for its approval by any officer or person, it would seem to follow that it had reserved to itself the right to determine whether the bond was satisfactory. This it has not been given the opportunity to do, and until it shall have approved thereof, the resolution of August 1st must be considered as conditional, not operative, and that of July 11th still in force.

Again, it is quite apparent from the fact that a bond was required to be given as a condition for rescinding the resolution, that the common council did not regard its action as within the police powers delegated to it.

Judgment should, therefore, be affirmed, with costs.

All concur.