text:
    Angeline Dailey, Pl’ff, v. Sidney Dailey, Def't.

      (Supreme Court, Erie Special Term,

      Filed July 19, 1894.)

    1. Divorce—Separation—Alimony.
    Alimony received by plaintiff upon a judgment of separation, entered without application to the court and subsequently paid, cannot be regarded in full of alimony chargeable to defendant, upon vacation of such judgment.
    2. Same—Application to court.
    Impairment of the marriage relation cannot be permitted except upon due proof of sufficient cause, without collusion, upon due judicial investigation and by judicial decree.
    Motion that a certain amount of alimony received by the plaintiff upon a judgment of separation entered without application to the court and subsequently paid, should be regarded in full of alimony to be chargeable to the defendant and for other relief.

      H. C. Kingsbury, for def’t and the motion; N. H. Hill, for pl’ff, opposed.
   Ward, J.

The parties to this afetion are husband and wife. In December, 1888, the plaintiff commenced this action by the service of a summons and complaint upon the defendant, alleging the marriage of the parties; that they had three minor children; that they resided in the state of New York, and that prior to the commencement of the action the defendant had so injured, abused and outraged the plaintiff, setting forth facts entitling her, if proved, to a separation from bed and board from the defendant. The defendant answered the said complaint, admitting the marriage, but denying, substantially, and putting in issue the allegations of the complaint, which answer was served in January, 1889. H. 0. & C. A. Kingsbury were the attorneys for the defendant, and Sessions & Woodward the plaintiff’s attorneys. On the 20th of February the defendant’s attorneys served upon the plaintiff’s attorneys, in behalf of the defendant, an offer to allow judgment to be taken against him in this action for the sum of ten hundred and thirty dollars, to be paid in the manner following: $280 on the entry of the judgment in Chautauqua county clerk’s office, and $250 annually thereafter, without interest, and in case of the death of the plaintiff the payment to cease, and contained this further provision: “And such alimony shall be all to which the defendant shall in any event be liable, and the parties shall be separated from bed and board.” Mr. H. C. Kingsbury verifies this offer, and states that he was authorized by the defendant to make it in his behalf. On the same day (February 20) the plaintiff’s attorneys served upon the defendant’s attorneys a notice in writing stating that the plaintiff accepted the offer, reciting it, and provided in case of the death of the plaintiff the payment should cease. The offer was verified by Mr. Sessions, one of the plaintiff’s attorneys, and that he was authorized by the plaintiff to accept the offer of judgment; thereupon the plaintiff’s attorney enters judgment in this action in the clerk’s office of Chautauqua county, and without application to the court, and without the direction o£ the court, and the judgment so entered recited the said offer and its acceptance, and proceeded as follows: “It is adjudged that Angeline Dailey, the plaintiff, recover from and against Sidney Dailey, the defendant, the sum of ten hundred and thirty dollars, to be paid in manner following (reciting the payments as in the offer), and in case of the death of the plaintiff, Angeline Dailey, the said payments to cease, and the said plaintiff and defendant are forever separated from bed and board.” The judgment was entered and the judgment roll filed February 20,1889.

The papers further disclose that pursuant to said ari’angment the parties separated and lived separate, and have lived separate and apart until this time That the defendant paid the amount stipulated to be paid in the offer of judgment as therein provided, and in effect carried out this arrangment until about June 1894, when the plaintiff employed Mr, Hill as her attorney, and a motion was made at the Brie special term on her behalf on July 6, 1894, to set aside and vacate the judgment so entered, the moving papers alleging that she had up to a very recent date been ignorant of the existence of the judgment and of the papers upon which it was founded, and had in no manner authorized or consented to the same. Mr. Sessions, her attorney, however made affidavit contradicting these statements and setting forth that he had authority to make such offer and enter such judgment and that it was with the knowledge and consent of the plaintiff. The court set aside the judgment as absolute void, and the defendant now makes this motion.

I am satisfied from the papers that the offer was made and accepted, and the judgment entered with the knowledge and approbation of the plaintiff and that she received the amount of money stipulated therein to be paid to her and that she has in fact been separated from the defendant under the said judgment and but recently has conceived the idea of repudiating it, and strong equitable considerations seem to favor affirming the transaction and granting this motion, but it cannot legally be done.

The judgment was not only irregular but void. It was simply a judgment by consent. An action having been brought and the issue joined, it was, so to speak, settled, and the parties agreed to a divorce from bed and board, and upon the amount of alimony to be paid without the knowledge, consent or supervision of the court.

It is against the policy of our law and the best interests of society to permit the destruction or impairment of the marriage relation except upon due proof of sufficient cause ; without collusion ; upon due judicial investigation, and by judicial decree.

This policy of the law is indicated by § 1229 of the Code of Civil Procedure which provides that, even where there is a contest and trial before a referee, judgment cannot be taken as of course upon the referee’s report, but the judgment must be rendered by the court, and the court must fix the amount of alimony for the support and maintainance of the wife and children under § § 1766 and 1769 of the Code and by supreme court rules 77 and 37 no judgment granting a divorce or separation, or limited divorce shall be made of course, by defraud or by consent.

In Daggett v. Daggett, 5 Paige, 509, it was held by the chancellor in an action of divorce that previous to a decree dissolving a marriage, the wife could not make any valid agreement as to her allowance of alimony and the same reasoning applies to an action for a separation.

And see as bearing upon this proposition herein made Blott v. Rider, 47 How. Pr. Rep. 90; Sullivan v. Sullivan, 41 Supr. Ct. Rep. 519 ; Puguet v. Phelps, 48 Barb. 566; Burr v. Burr, 7 Hill, 207.

The court has no inherent jurisdiction in actions for divorce or separation but their powers are purely statutory.

It follows from these views that the motion herein must be denied, but without costs. »

There has been an issue framed in this action which is untried and undetermined ; and although as before said the plaintiff has had the benefit of the arrangment and a considerable amount of alimony, no other way seems open to the parties, but to have their issues tried out in the appointed way and have the court pass upon the question of separation and of alimony as prescribed by the laws and the practice of the court, and I have no doubt, but upon the proper proceedings, should the court find that a separation should be decreed and alimony allowed the plaintiff, that it will consider the amount already paid and the transactions and history of the case in disposing of the rights of the parties.


source: Caselaw Access Project

author: Bookstaver, J.

license: Public Domain

text:
    George B. Estelle, Resp’t, v. Mary Dinsbeer, App’lt.

      (New York Common Pleas, General Term,

      Filed August 1, 1894.)

    1. Jurisdiction—District courts.
    Defense of fraud in inducing a contract may always be set up and provéd in district courts for the purpose of defeating a claim founded in fraud.
    2. Right or action—Extinguishment.
    Right of action once vested can be extinguished only by release or satisfaction.
    3. Evidence—Lease.
    Where a lease and mortgage are made interdependent by a reference in each to the other, and are both part of a single transaction, the exclusion of the lease is error, in action on such mortgage.
    Appeal from, a judgment rendered in favor of the plaintiff in the district court of the city of Hew York for the eighth judicial district.

      George A. McDermott, for app’lt; P. C. Talman, for resp’t.
   Bookstaver, J.

This action was brought to recover $100, claimed to be due on the 15th February, 1894, as an installment under a chattel mortgage, which was given by the defendant to the plaintiff upon the purchase of the furniture in the house 244 West Thirty-ninth street. The answer was a general denial, payment and fraud; the fraud, as claimed by the defendant, consisting in thé representations that the furniture sold was free and clear; that the house brought in an income of $400 per month, and that the neighborhood was good, all of which defendant claimed were false, inasmuch as the furniture was at the time subject to a chattel mortgage to another person for $2,300, the neighborhood was not good, and the list of boarders delivered to defendant at the time, and which was represented to the defendant as containing only the names of permanent boarders, was fraudulent in that the persons represented as permanent boarders were not such, all having left the following day except a few on the top floor. On the trial many questions were put to bring out these facts, but all of them were overruled by the justice who tried the cause. We infer from his rulings that he considered evidence could only be given as to the particular installment of $100. This was clearly erroneous. While district courts of course have no jurisdiction in equity, yet the defense of fraud in inducing a contract may always be set up and proved in these courts, not for the purpose of obtaining affirmative relief, but for the purpose of obtaining a claim founded in fraud. This is too well settled to ■need the citation of any authority. Besides, it appeared upon the trial that an accepted order was given signed by both the plaintiff and the defendant, transferring one-half of the February installment, as well as one-half of the following March installment, to one Bly, who, as far as appears from the “return, still holds this order, upon which he, of course, has a right of action. Such right once vested can only be extinguished by release or satisfaction, Haas v. Altieri, 2 Misc. 252; 50 St. Rep. 341, and there is no evidence that either has been done in this case. Ie also appears from the return that the purchase of this fumitur# was only a part of a single transaction, the other part being tht giving of a lease for a term of five years, at an annual rental of $1,500 per annum, and these transactions were had between the parties in order that the defendant might carry on a boarding house in the premises 244 West Thirty-ninth street. The lease referred to the mortgage and the mortgage to the lease, and were thus made interdependent. The court excluded the lease when offered, and would allow no evidence in respect thereto. This, also, was clearly error.

For these reasons the judgment must be reversed and a new trial ordered, with costs to the appellant.

Bischoff, J., concurs.


text:
    George B. Estelle, Resp’t, v. Mary Dinsbeer, App’lt.

      (New York Common Pleas, General Term,

      Filed August 1, 1894.)

    J. Lease—Conditional limitation.
    In case of a conditional limitation, the landlord has no election, but the lease terminates by reason of the happening of the event.
    Summary proceedings.
    In such case, summary proceedings to recover possession from the tenant should be against him as a holdover and not for non-payment of rent.

      Appeal from a judgment of the district court of ,the city of New York for the eighth judicial district, awarding possession of the premises No. 244 West Thirty-ninth street, in this city, to the landlord.

      George A. McDermott, for tenant, app’lt; P. C. Talman, for landlord, resp’t.
   Bookstaver, J.

The petition of the landlord recited that the rent for the month of March, 1894, amounting to $125, was unpaid, and that it was due pursuant to the lease. The answer denied the lease and terms of agreement as set forth in the petition, and alleged that through fraud and by means of false representations she paid the landlord $1,000, which is still due her, and further alleged that the landlord failed to perform the conditions of the agreement, and that the lease became forfeited on or about the 15th February, 1894, on default of the payments therein provided, and, therefore, that the court was without jurisdiction. The lease contains the following recital, “ and it is further understood and agreed that the party of the second part is to pay in addition to the monthly rent of $125 the further sum of one hundred dollars ($100) on the 15th day of each and every month as part payment of the furniture in said house 244 West Thirty-ninth street, as per mortgage on said furniture, and if not so paid this lease shall become null and void.” On the trial it appeared without contradiction that the $100 due on the mortgage on the 15t,h day of February had not been paid, and in our judgment this default terminated the lease by its terms without any act on the part of the landlord. The distinction between a condition subsequent contained in a lease and a conditional limitation of a lease, must * here be kept clearly in mind. In the one case the landlord may éiect to disregard the breach of the condition, and treat the lease as still existing; in the other case he has no election, but the lease terminates by reason of the happening of the event. The case of the breach of a condition subsequent is well illustrated in Kramer v. Amberg, 16 Civ. Pro. 447; 23 St. Rep. 60, where the general term of this court held that the breach of a condition subsequent by the tenant does not of itself operate to determine the demised estate, that such a result is obtainable only by the landlord’s reentry for breach of the condition; that without such re-entry the term cannot be said to have expired; and hence for a breach of a condition subsequent, summary proceedings to recover the possession of the demised premises cannot be maintained on the ground that the tenant continues in possession after the expiration of the term. See, also, Burnett v. Scribner, 16 Barb. 621; Richards v. Millard, 76 N. Y. 574; McPadden v. N. Y. C. R. R. Co., 44 Id. 487; Lynch v. Onondaga Salt Co., 64 Barb. 558. Here, however, the lease is in effect that it shall continue for the period of five years unless sooner determined by the non-payment of the monthly installment to be paid upon the mortgage according to its terms. In this case no condition is violated, but the term expires of its own limitation upon the happening of the event provided for. Reentry is not required to reinvest the landlord with the right to immediate possession, and summary proceedings to recover it from the tenant as a holdover are maintainable. Miller v. Levi, 44 N. Y. 489; Manhattan Life Ins. Co. v. Gosford, 52 St. Rep. 419; Horton v. N. Y. C. R. R. Co., 12 Abb. N. C. 30: 8 Am. & Eng. Enc. 447, and cases cited under subdiv. 6 ; Stuyvesant v. Davis, 9 Paige, 431; Parmelee v. Oswego & S. R. R. Co., 6 N. Y. 74; Beach v. Nixon, 9 Id. 36; Von Kamen v. Roes, 48 St. Rep. 921; Gerard’s Title to Real Estate, 191; McAdams L. & T. 43. This being the case the relation of landlord did not exist when the petition was filed and the proceeding should have been against the tenant as a holdover and not for the non-payment of rent. Such proceeding in the form instituted in this case could only be entertained when the relation of landlord and tenant exist by the agreement of parties and not by operation of law. People v. Cushman,. 1 Hun, 73; Livingston v. Tanner, 14 N. Y. 64; People v. Simpson, 28 N. Y 55.

. Having arrived at this conclusion it is unnecessary to examine the other questions raised upon this appeal. The final order and all the proceedings resulting therein, should be set aside and declared null and void, with costs of this appeal to the appellant.

Bischoff, J., concurs.


author: Bischoff, J.

text:
    Charles E. Fleming et al., App’lts, v. Martin F. Ryan et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed August 1, 1894.)

    1. Lease—Agreement.
    An agreement to give a lease, after certain conditions as to security were complied with, which were never performed, is not a lease.
    2. Principal and agent—Authority.
    Where the apparent nature of an agent’s duties admit of their delegation to one in the capacity of clerk or servant, no implication that an act involing the exercise of discretionary powers was authorized, can be raised therefrom.
    8. Evidence—Principal and agent.
    Agency cannot be established by the declarations of the agent.
    Appeal from a final order in summary proceedings, made by the justice of the district court in the city of Hew York for the first judicial district, awarding possession of certain premises to' the tenant defendant

      Moses Weinman, for app’lts ; H. M. Gescheidt, for resp’ts.
   Bischoff, J.

By answer to a petition in summary proceedings for defendant’s dispossession from certain premises, it was set up that the tenant Johanna Ryan, held under a lease made by plaintiffs to certain parties, she being the tenant under a sub-lease from the latter. Upon the trial, this defense was totally abandoned and it was sought to be shown either that the tenant had been given a lease by one Burnham, plaintiff’s agent, or failing this, that a lease had been given verbally by one Place, claimed also to have been such an agent, to Martin Ryan and by him assigned to her. It appears clearly from the tenant’s testimony that no lease was

ever made to her by Burnham, for from the conversation had between the parties in that regard, crediting defendant’s evidence, a consent to give a lease, after certain conditions as to security were complied with, alone resulted, and these conditions were never performed. Upon this question, also, the weight of the evidence is with the plaintiffs, the tenant’s story as to the making of a lease being in no way corroborated and directly contradicted by the witness Burnham, whose testimony is to be given the greater credit in view of the serious discrepancies appearing between the tenant’s verified answer upon the one hand, and her statements on the trial upon the other. Siefke v. Sieflce, 5 Misc. Rep. 406 ; 55 St. Rep. 388 ; Brown v. Sullivan, 1 Misc. 161; 48 St. Rep. 685. The judgment in defendant’s favor must find support, if at all, upon the verbal renewal lease claimed to have been made by the agent,Place with Martin Ryan, and assigned to this tenant, and, giving credit to the evidence adduced by defendants upon that issue, the question turns upon the agency of Place, express or implied, to make the lease in question. It is undisputed that Place had never made a lease on,behalf of the plaintiffs, that he had no authority so to do and that his only duties, with regard to the tenants, were to collect the rent and, at or near the expira- • tian of existing leases, to question the tenants as to their desire to retain the premises for another year. The duties in question were purely ministerial, involved the exercise of no discretion or judgment and no claim is made that prior to the occasion in question had the agent assumed to enlarge the scope of his agency, and this with the plaintiff’s acquiescence. The apparent nature of this agent’s duties admitted of their delegation to one in the capacity of clerk or servant, and no implication that an act involving the exercise of discretionary powers was authorized could be raised therefrom. Broadway & S. Av. JR. R. Co. v. Metzger, 39 St. Rep. 846. Thus the agency here relied upon finds its sole support upon the statements of the agent, as testified to by defendants, made in the course of this particular transaction, but agency is not thus to be established; Sier v. Bache, 7 Misc. R. 165 ; 57 St. Rep. 494. The judgment should therefore be reversed and a new trial ordered, with costs to appellants to abide event. Book-stayer, J., concurs.


text:
    Jean Graf, Resp’t, v. Simon Feist, App’lt.

      (New York Common Pleas, General Term,

      Filed August 1, 1894.)

    1. Evidence—Receipts.
    A receipt for rent in full for a particular month is presumptive evidence that all rent previously accrued has been paid.
    2. Husband and wife—Joint eakningb.
    Where the wife works with her husband for another and their joint earnings are used to support the family, they belong to him in the absence of a special contract that she is to receive the avails of her labor.
    Appeal from a judgment rendered in the district court in the city of New York for the eleventh judicial district.

      Lawrence P. Mingey, for app’lt; Robert Goeller, for resp’t.
   Bookstaver, J.

This action was brought by the plaintiff for the purpose of recovering for wages which he claimed to be due him as engineer, and for the services of his wife as janitress of certain premises belonging to the defendant. The defense was that the plaintiff and his wife had been discharged for misconduct on their part during the course of their employment, and also a counterclaim for goods sold the plaintiff or his wife. On the trial it appeared that the employment was a monthly one, and that a full month’s services had been rendered by the plaintiff before his discharge. The proof as to the misconduct of the plaintiff was vague and uncertain, and we think the justice did not err in the conclusion to which he arrived upon the evidence before him. It is true that the plaintiff’s testimony was somewhat contradictory, but the justice had all the parties before him and could better judge of the weight to be given to the testimony of the witnesses produced than we can possibly do. But it is clear that the justice erred in his calculation as to the amount due the plaintiff. The action was brought to recover the sum of $118.04. On the trial, after the plaintiff had rested his case, his counsel reduced the claim to $80.56. The defendant offered evidence in support .of his counterclaim, which amounted to the sum of $31.50, and which the justice allowed at $16.50. As found by the justice there was due the plaintiff for wages for the month of November, according to the contract between the parties, $50; for the work during the month of December, five days, for which he allowed $2.50 per day, amounting to $12.50; he also found that there was $7 due for services of the wife and $3.50 a balance for moneys expended for materials furnished in and about the premises. An examination of the receipts in evidence shows that instead of the balance being $3.50, it was in reality but $3.04. This together with the items above mentioned amounts to $72.54, or, as the justice states it, $73. It is obvious, therefore, that he aid not deduct the amount of the counterclaim from that sum, which would leave the true amount due the plaintiff, according to the justice’s finding, $56.04. This error arose probably from the fact that copies of monthly bills had been introduced in evidence amounting in all to $27. But it is clear from plaintiff’s testimony that these had all been paid, for he rendered a bill to the defendant for the month of November, which amounted to $84.54. upon which there was a credit of $4, reducing it to. $80.54, the exact amount claimed by him on the trial. When interrogated by the defendant’s counsel aS to this November bill, he stated that there was no other debt existing from the defendant to him at the time for materials furnished, and repeated this statement when interrogated by the court in such a manner that there could be no mistake as to the matter. Besides this, the defendant introduced in evidence the receipt of the plaintiff for the month of November, showing payment in full for that month, and we appi’ehend that monthly bills of expenses fall within the rule as receipts for rent, and it has been held that such a receipt is presumptive evidence that all rent previously accrued has been paid. Decker v. Livingston, 15 Johns. 479. It is also contended that the court erred in allowing a recovery for the wife’s services as janitress, on the ground that she had a right under the Married Woman’s Act to sue individually. But the husband’s testimony is that he made the arrangement with the defendant for the services of his wife as janitress, and there is no evidence that the defendant ever paid the wife individually, or intended to do so. In Blaechinska v. Howard Mission, 130 N. Y. 497; 42 St. Rep. 387, it was held that the wife works with her husband for another and their joint earnings are used to support the family, if there is no special contract that she is to receive the avails of her labor, they belong to him, and he isl entitled to recover their value; citing Birkbeck v. Ackroyd, 74 N. Y. 356; Bean v. Kiah, 4 Hun, 171.

The judgment must therefore be modified by reducing the principal amount to $56.04, to which are to be added the costs in the court below. No costs to either party upon this appeal.

Giegerich, J. concurs.


text:
    Barnett Hamburger, App’lt, v. Frances Rottenberg, Resp’t.

      (New York Common Pleas, General Term,

      Filed August 1, 1894.)

    Contract—Substantial compliance.
    "Where there has been a substantial compliance with a contract, there may be a recovery less the amount required to complete it according to its ■ terms.
    Appeal from a judgment of the district court in the city of New York for the fifth judicial district, rendered on the verdict of a jury.

      Jacob Manheim, for app’lt; Samuel D. Levy, for resp’t.
   Bookstaver, J.

This action was brought upon a written proposal and acceptance- by the defendant’s husband as her agent, which is as follows:

“New York, November 10, 1893.
“ Rottenberg B. B. Co.
“ I will put in a No. 36 furnace (Richardson & Morgan) in sub-cellar to heat basement with one register, with slate soapstone to be set in register, also two registers on store floor, these also to have slate soapstone, pipes to be made of eight inch galvanized iron, also cold air boxes for the three registers, all workmanship to be done in first-class order, for the sum of one hundred and twenty-two dollars and fifty cents ($122.50), the furnace to be-put in thorough working condition. Payments to be made as follows: $75 on December 15, and the balance January 15, 1894.”

Upon the trial it appeared that the furnace put up was not a Richardson & Morgan furnace, hut was what is known as a Richardson & Boynton furnace. There was evidence on the part of the plaintiff that the defendant consented to this change. And it was also claimed on the part of the plaintiff that there was no difference, practically, between the two furnaces. Defendant1 also claimed, and offered some evidence to substantiate her claim, that in certain other respects the furnace was not according to the contract, and that she had to expend considerable sums in making it effective. There was also much evidence offered in the case tending to show that the pipes should have been of tin and not galvanized iron, and that the furnace did not sufficiently heat the premises. But there was no guarantee contained in the contract in respect to the sufficiency of the furnace or its connections, and the contract called for galvanized iron and not tin pipes. When the question was submitted to the jury by the justice who tried the case, he was requested by the defendant to charge that if they believed “ there was a substantial compliance with this contract except that it took part of the $35 testified to (I believe the evidence says it took three days’ labor to alter this work outside of the extra work), that then the jury have a right to find a verdict for the plaintiff, less that amount which was paid to alter this work under the contract,” which the court refused to do. This we think was error, for it is now too well settled to need argument that where there is a substantial compliance with a contract there may be a recovery less the amount required to fulfill the contract according to its terms. Logan v. Berkshire Apartment House, 52 St. Rep. 132 ; Hardwicke v. Board of Education, 23 Wk. Dig. 62; Parke v. Franco-American Trad. Co., 120 N. Y. 51; 31 St. Rep. 275; Ball Electric Light Co. v. Sanderson, 38 St. Rep. 640; Rush v. Wagner, 34 St. Rep. 798; Oberlies v. Bullinger, 132 N. Y. 598; 44 St. Rep. 851. Bespondent contends in his brief that such a charge was substantially given before the request was made, but we have looked in vain through the charge to find anything that was equivalent to the request made.

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

Bischoff, J., concurs.'


text:
    William K. Hammond, Resp’t, v. Hannah A. Martin et al., App’lts.

      (New York Common Pleas, General Term,

      Filed August 1, 1894.)

    Appeal—On auge.
    The submission of a case to the jury upon'the hypothesis that the evidence -would justify a finding that a sale took place when the property was delivered, when the evidence shows clearly and without contradiction that this delivery was purely for the purposes of trial, is error.
    Appeal from a judgment of the district court in the city of Hew York for the eighth judicial district, rendered upon the verdict of a jury. Action for agreed "purchase price upon sale of a horse.

      George S. Hamlin, for app’lts; Nelson Smith and James F. Higgins, for resp’t.
   Bischoff, J.

Appellant’s principal contention upon this appeal is confined to the charge delivered by the justice below,there being no dispute that upon the evidence the verdict finds support. It appears from the testimony that the horse for the agreed price of which this suit is brought, was sent to defendants for trial in contemplation of purchase; that defendants’ managing agent, through whom the whole transaction was conducted, subsequently expressed himself to plaintiff as satisfied with the animal except that it was “ off its feed,” and that he would accept it at the price asked should it regain its health in that regard. Plaintiff testified that after this he held a conversation with the agent over the telephone and that the latter then stated that the horse was working all right and was no longer off its feed. The above might well be taken as sufficient evidence to establish a sale of the animal, but upon the plaintiff’s own testimony there is no doubt that the facts stated formed the only basis for a verdict against the defendant. The justice, however, submitted the case to the jury upon the hypothesis that the evidence would justify a finding that a sale took place when the animal was delivered, whereas the evidence shows clearly and without contradiction that this delivery was purely for the purposes of trial. Thus under the charge the jury could have reached their verdict while giving "credit to the defendants’ agent’s direct contradiction of plaintiff’s testimony with regard to the conversation over the telephone, and this conversation was the only basis for a finding that the minds of the parties had met. We cannot hold that this error was cured by the charging of defendants’ requests to charge to the effect that “the minds of the parties must have met to constitute a sale,” or “ that the delivery was as consistent with a delivery for trial as with a delivery after sale,” for this still left unavoided the elements of objection above referred to. Nor can the subsequent consent of plaintiff’s counsel that the court charge in effect that the delivery was for trial only, alter the question. The court did not so charge and the case went to the jury with the erroneous instruction unchanged. Appellants’ exceptions to the charge in this regard present error which requires a reversal of the judgment.

Judgment reversed and new trial ordered with costs to abide the event.

Bookstaver, J., concurs.


text:
    Isaac Jacobs, Resp’t, v. Henry Zeltner, App’lt.

      (New York Common Pleas, General Term,

      Filed August 1, 1894.)

    1. Appeals—Appealable.
    Final order in summary proceedings, obtained by default, is appealable.
    2. Same.
    No appeal lies from an order denying a motion to open such default.
    Appeal from a final order in summary proceedings for the possession of premises whereby possession was awarded to the landlord plaintiff, and from an order denying defendant’s motion to open his default in such proceedings, made by the justice of the district court in the city of New York for the fourth judicial district.

      Stiefel & Lauer, for app’lt; Joseph Steiner, for resp’t.
   Bischoff, J.

J. — Judgment for dispossession of the appellant from that certain portion of the premises in question which he held by lease was rendered upon default of his appearance and the warrant was duly executed. The proceedings were based upon the certificate of a marshall to the effect that the precept had been served upon defendant by delivering the same to and leaving it with a person of suitable age residing upon the “premises, defendant being at the time absent therefrom. Appellant subsequently made motion before the justices to open his default, upon the ground that he was never apprised of the issuance of process, and in support of this motion affidavits were presented, which are annexed to the return upon this appeal, verified respectively by appellant, his wife and their two children, it appearing therefrom that the precept was not served upon any one of the affiants. The justice denied the motion expressly upon the ground that he possessed no power to open the default, and from the order thereupon entered it appears that no examination into the merits of the application was made. This appeal was taken from such order and from the final order for dispossession. A judgment rendered upon default of appearance in a district court is appealable to this court, notwithstanding the power conferred upon the justices to open defaults on the motion, Hurry v. Coffin, 11 Daly, 180, and in view of the provisions of § 2260 of the Code, whereby final orders in summary proceedings are in nature assimilated to judgments for purposes of review, Moench v. Yung, 16 Daly, 143; 29 St. Rep. 731, and the case first cited is an authority for the proposition that such a final order when obtained by default, is none the less appealable. It would- appear that the justice misapprehended the extent of his powers in this case, for the motion to open the default as here made clearly called for determination in the exercise of that discretion which was vested in him by § 1367 of the Consolidation Act, yet from the order denying such motion no appeal lies. The statutory provisions governing appeals from the district courts are found in §§ 3044 to 3067 of the Code, (see Consolidation Act; ch. 410, Laws 1882, § 1438 ; Code Civ. Pro. § 3213) and no provision for an appeal from an order granting or denying a motion to open a default is there made. In the absence of such a provision the appeal cannot be entertained, the power to review proceedings of these courts being purely statutory, see Rosenthal v. Greene, 12 Daly, 529.

The appeal from the final order, however, suffices to present the question raised by appellant in the court below, Code Civ. Pro. §3064: Hurry v. Coffin, supra, and the matter -is to be determined upon the affidavits incorporated in the return. We are constrained to hold that these affidavits are insufficient for the purpose intended and cannot avail against the marshal’s certificate which in form and substance fulfills the statutory requirements essential to the validity of the order made, Code Civ. Pro. § 2240. For all that is alleged in these affidavits, as matter of fact, the service may well have been made as certified to by the marshal and the presumption of regularity which attaches in support of the judgment cannot be here deemed to have been successfully rebutted. This is not, as was Waring v. McKinley, 62 N. Y. 612, a case where a direct return of personal service was made and successfully impeached, and furthermore the appellant here fails to present any defense to the proceeding, which .omission this court has held to bo fatal to an appeal of this character. Jewell v. Heinzel, 6 Daly, 411.

The final order must be affirmed, with costs. Appeal from - order denying defendant’s motion dismissed without costs.

Bookstaver, J., concurs.


author: Per Curiam.

text:
    Walter L. Kane et al., App’lts, v. Martin Dahlbender et al., Resp'ts.

      (New York Common Pleas, General Term,

      Filed August 1, 1894.)

    POWEB OF ATTORNEY—CONSTRUCTION.
    The power of attorney, in this case, was so construed as to be subject to no limitation as to personal direction from the landlord, in respect to power of leasing and taking proceedings to dispossess tenants.
    Appeal from an order entered in the district court in the city of New York for the second judicial district.

      Tracy & Lane, for app’lts; J. J. Walsh, for resp’ts.
   Per Curiam.

We think the court erred in excluding the power of attorney offered in evidence by the landlords and in its construction of that instrument. The instrument plainly delegates several distinct powers to Mr. Ely the attorney. The first is to take the care and management of the real estate belonging to the landlords as they might “from time to time by letter direct.” This power is separated from that which follows hy- a semi-colon. Then is delegated the power to “let the same from year to year or for a term of years not exceeding five as he, the attorney, shall judge for our interest.” This power has no limit as to personal direction from the landlords. Then follows a third power also separated by a semi-colon, which provides that “ in case of nonpayment of rent or the tenant shall hold over” to take proceedings to dispossess him. It might as well be claimed that the attorney could not take proceedings to dispossess tenants unless authorized to do so by a letter, as to contend that he could not rent premises without such special direction, which clearly is not intended by the power. The judgment or final order should therefore be reversed and a new trial ordered with costs to abide the event.


author: Gildersleeve, J.

text:
    Charles Krumwelde, Pl’ff, v. The Manhattan Railway Company, Def't.

      (New York Superior Court, Equity Term,

      Filed March, 1894.)

    1.- Elevated Railway—Abutting ownee—Rights.
    An owner of a lot abutting on a city street, the fee of which is in the municipality, has no private'right or easement therein other than the easements of light, air and access appurtenant to said premises.

      2. Same—Damages.
    In such case, the plaintiff cannot recover, where the testimony fails to show any net damage to Ms property flowing from the defendant’s acts.
    3. Same.
    The benefit conferred by the company cannot all be charged up against past damages and allowed no weight in determining the present fee damage.
    á. Same.
    The value of the property is to be determined by charging the company with damages and crediting it with the advantages or benefits it confers.
    5. Same.
    An award cannot be based upon testimony "that some other property has benefited by the company’s acts more than the premises of plaintiff.
    6. Same—Noise. ;i
    Noise is an element that has no direct bearing upon the fee value.

      W. W. Badger, for pl’ff; Davies, Short & Townsend (Brainard Tolles, of counsel), for def't.
   Gildersleeve, J.

The plaintiff is the owner of premises Ho. 790 Columbus avenue, between 98th and 99th streets. The lot is seventy-five feet deep and twenty-five feet in width, front and rear, and the improvement consists of a five story brick building. The first floor is rented for business, and the four upper floors are dwelling apartments, commonly called flats. There are two apartments on each floor, of five rooms each ; they have dumb waiter service, but no bath tubs. The plaintiff purchased the property in August, 1887, soon after the erection of the building, for twenty-four thousand dollars. The defendant constructed its elevated railroad on the avenue in front, of the premises in question and began to run its trains thereon in 1879, and in 1880 the road was regularly operated, and has been maintained and its operation continued down to the present time.

In 1891, the defendant constructed on said avenue a third track for express trains, and on this track, since the latter date and down to the present time, the so-called express trains to Harlem run in front of the plaintiff’s premises at the rate of thirty miles an hour. Owing to the natural grade of Columbus avenue at the point in question the defendant’s structure is of an unusual height, reaching an elevation opposite the plaintiff’s house of forty-seven feet. There are pillars that support the defendant’s track in front of the plaintiff’s house, and the nearest point of the defendant’s structure thereto is about thirty feet. Columbus avenue is one hundred feet wide, and the defendant’s structure occupies at this point the middle of the avenue. This action was commenced in February, 1891, to recover past damages to the rental value of the premises since plaintiff became the owner, and for an injunction to restrain the defendant from maintaining and operating its railroad on the avenue in front of plaintiff’s property. The bed of Columbus avenue in front of the premises in suit is owned by the Mayor, Aldermen and Commonalty of the city of Hew York. The plaintiff has never had any private right or easement therein other than the easements of light, air and access appurtenant to said premises. In Kane v. N. Y. El. R. R. Co., 125 N. Y. 164; 34 St. Rep. 876, the court of appeals say: “An owner of a lot abutting on a city street, the fee of which is in the municipality, has by virtue of proximity special and peculiar rights, facilities and franchises in the street not common to citizens at large, in the nature of easements therein, constituting property, of which he cannot be deprived by the legislature or municipality, or by both combined, without compensation.” In Story v. N. Y. El. R. R. Co., 90 N. Y. 122, it was held that those rights or privileges in the street constitute an easement in the bed of the street, which attaches to the abutting property and constitutes private property,, within the meaning of the constitution, of which an owner cannot be deprived without compensation. It must, therefore, be held that the defendant has taken the plaintiff’s property without his consent, and is a trespasser. Strict rules must not be applied in ascertaining the extent of the wrong which the plaintiff has suffered. The plaintiff’s claim is concisely stated by his learned counsel in the brief before me as follows: “Our complaint is for rental values on the property above the depreciated value of it, on which we have received nothing during our title, while but for the road we should have received a fair ratio on our full value.” It is then suggested that the fairest way of determining the damage “is to fix the fee damage first and then allow a ten per cent, ratio on that yearly back to the date of plaintiff’s title.” When abutting property has sustained a fee damage by reason of the defendant’s acts, the amount in cases of this character is usually reached and most satisfactorily determined by ascertaining how the rental values have been affected by the defendant’s interference with the easements. No safer or more certain guide, in the ascertainment of the actual value of a piece of real estate, can be had than an observation of rents received. Prospective investors in real estate, in their endeavors to fix the fair market value thereof, if the property is improved and productive, look first to the rent rolls. If we follow the suggestion of plaintiff’s counsel on this branch of the case the usual course of inquiry cannot be taken.

There is, it seems, a very good reason for the suggestion under consideration. It appears from the evidence that there has been no decrease in actual rents received upon which to base a conclusion that the plaintiff’s rental values have suffered from the operation of defendant’s road. It is established by the evidence that the first floor, used as a store, with cellar privileges included, has rented since May, 1893, for $100 per month ; from May, 1891, to May, 1893, the rent was $80 per month; and for some time before as low as $60 per month. This shows a very handsome advance in rents actually received. It is proper here to call attention to the fact that since the construction and operation of the third track for the convenience of express trains there has been a substantial advance in the store rents. The rent for the flats amounts in the aggregate to $122 per month, and the plaintiff testifies that they have always rented for the same sum. The gross annual rents, therefore, during the plaintiff’s ownership may fairly be said to amount to $2,664. This sum exceeds eleven per cent. of the purchase price. The highest ratio of rental to fee value for this property fixed by any o.f the witnesses is nine per cent. It seems, therefore, that the plaintiff has received a larger income from bis investment than experts in real estate values believe he had any reason to expect.

I repeat, that in the perusal of the rent roll of the plaintiff’s property can be found no warrant for an award to him of damages to rental values. But the plaintiff says that he has not received a fair ratio on the full value, or what the value would have been had the defendant’s road not occupied the avenue.

It is a reasonable income from the value of the property taken by the defendant that the plaintiff insists is the measure of his rental damage. This claim of the plaintiff cannot be maintained except upon the theory that he purchased the property at much less than its real value, and has been unable to reap the benefit of the good bargain made. The case is barren of evidence in support of such a theory. Nor is there any evidence to warrant the conclusion that the property in question has failed to share in the general increase of values shown to have taken place in respect of all real estate in the vicinity in question off the line of the defendant’s road.

In my analysis of the evidence and endeavor to ascertain what is proven I have closely followed the rule laid down for the ascertainment of damages in Pappenheim v. Met. El. R. R. Co., 128 N. Y. 436; 40 St. Rep. 445, and other cases laying down a similar rule. In my judgment the testimony fails to show any net damage to the plaintiff’s property flowing from the defendant’s .acts. I have made an estimate what would be the fair market value of the plaintiff’s property to-day without the railroad, and another estimate of the fair market value of the property as it exists now shorn of the easements belonging to the plaintiff which the defendant has seized and enjoys. On the question of fee damage I have considered present benefits and present damages, and fail to find that any net damage should be charged up against the defendant and awarded to the plaintiff. It must be held that the plaintiff’s premises, less his easements which the defendant has wrongfully taken, are worth more to-day, with the defendant’s railroad operating on the avenue upon which the plaintiff’s property abuts, than they would be without the existence of the railroad there. I cannot give approval to the contention of plaintiff that the benefits conferred by the defendant must all be charged up against past damages and allowed no weight in determining the present fee damage. Benefits, if there are any, begin with the damages, and if the operation of the road continues as begun, the benefits continue as well as the damages. It is urged by the plaintiff that the elevated road is not entitled to the benefit of originally bringing settlers into this region or upon Columbus avenue; that if the defendant wished to escape the. additional burden of increased values in acquiring the property of abutting owners necessary t.o the operation of its road, it should have taken condemnation proceedings years ago, at the time or before it entered upon the plaintiff’s property. I have nothing to do with the value of plaintiff’s easements at the time the road was constructed, except so far as their then value throws light upon the present value thereof. The duty of the court is to determine what the property is worth now, by charging the defendant with damages and giving it credit for the advantages or benefits it confers. The increase in the values of property in the vicinity of plaintiff’s premises since the coming of the elevated road is clearly established by the testimony. The elevated stations at 81st, 93d and 104th streets have been centers around which operations in real estate first became active. They are points at which improvements were first made and around which the increase in values was first noticed. It must be observed, however, that the increase in values, except for certain business purposes, has been more substantial a lew hundred feet away from the-road. This is due to the fact that property sufficiently removed from the road to escape its disadvantages gathers practically all the benefits that accrue to abutting property.. It will not do, however, to make an award to plaintiff based upon testimony that some other property has benefited by the defendant’s acts more than the premises of plaintiff. A word in reference to the exceptional height of the defendant’s structure at the point in question, the third track and ■ the operation of express trains thereon.

The unusual height of the structure at the point in question (47 feet) tends, it seems to me, to lessen the interference. The damages to the lower and more valuable floors are reduced by th.e height of the defendant’s road to the minimum. There is less interference with the light; the noise is not as troublesome; the access is the same as if the structure was of the usual height; and the physical annoyance generally to the comfort of the occupants of the building is not as great. The testimony warrants the conclusion that the operation of express trains upon the third track aggravates the noise. Apparently these trains add to the physical damage from noise. In this connection it is not to be forgotten that noise is an element that has no direct bearing upon the fee values. It would seem that additional physical damage from the extra noise is only, as has been said, apparent; for I look over the testimony in vain to find any actual damage to the rental value that can be attributed to this source. The premises rent just as well since the construction and operation of the third track as before. The plaintiff says the rents of the flats have always been the same, and the rent of the store, as already stated, has increased materially since the running of the express trains. Moreover, it may be said that, as the defendant is not limited in the number of trains that may pass over its road, if the third track did not exist more trains would be run upon the remaining two .tracks. I have carefully compared the values dE the property in the neighborhood—upon adjacent avenues and streets, as given by the various witnesses, with the value of the plaintiff’s property, and cannot find that the plaintiff has not shared in the general increase of values shown to have taken place in- property generally in that vicinity off the line of the defendant’s road. I think the plaintiff made a good purchase when he bought the property in suit, and should congratulate himself upon the handsome return it has yielded him. Although the plaintiff’s easements have been interfered with by the defendant, it must be held that the plaintiff lias been fully compensated therefor by the resulting benefits of defendant’s acts, and has suffered no pecuniary injury for which he is entitled to compensation; and, since the defendant’s road has been built with full authority of law, and now exists and is being operated by like authority, the plaintiff has no equitable cause of action The plaintiff has failed to show any loss of rental values due to the defendant’s acts during his ownership.

For these reasons the complaint must be dismissed. No costs.


text:
    Louise Lange, App’lt, v. Francis I. Pisch, Resp’t.

      (New York Common Pleas, General Term,

      Filed August 1, 1894.)

    Sale—Title.
    The legal title to chattels, sold upon express terms of cash on delivery, is not transferred upon delivery, where no payment is made by the vendee and the condition is, in no way, waived by the vendor.
    Appeal from a judgment of the district court, in the city of New York for the seventh judicial district, rendered by the justice without a jury, in favor of the defendant. Action for conversion of certain lamps.

      Byram L. Winters, for app’lt; Charles Meyers, for resp’t.
   Bischoff, J.

Defendant sold and delivered to one Mack certain lamps, the chattels in suit, which were by the latter affixed to the premises held by him under a lease from the plaintiff. Mack was subsequently dispossessed from the premises and thereafter died, no payment for the chattels having been made by him to defendant and no demand for such payment having been made by defendant at any time of the representatives of the deceased. Defendant instituted an action for replevin of the chattels against the son of the plaintiff herein, and at the commencement of such action obtained possession of the lamps through seizure by a marshal, the replevin action was then discontinued upon this defendant’s motion and suit is now brought for conversion of such chattels. The justice below rendered judgment in favor of the defendant and upon this appeal but two questions are raised by counsel; first, were these chattels to be viewed as fixtures of a character which precluded their removal from the freehold, and second, had title passed from defendant to Mack upon the sale referred to? The question whether or not these lamps were “fixtures” is not to arise between the parties to this action if the title to the chattels was actually in defendant, Tyson v. Post, 108 N. Y. 217, 221; 13 St. Rep. 503, and it becomes, merely, a question whether or not title had passed from defendant to Mack when the goods were delivered by the former to the latter. It would appear that plaintiff’s possession of the chattels was in this case sufficient to form the basis of an action for conversion, and inquiry is to be directed toward the sufficiency of defendant's evidence to establish the defense of title. In support of this defense defendant gave evidence showing that the sale to Mack had been upon express terms of cash on delivery and it thus appears that the legal title to the chattels was not transferred upon the delivery, no payment having been made by the vendee and the condition appearing in no way to have been waived by the vendor. Empire State T. F. Co. v. Grant, 114 N. Y. 40; 22 St. Rep. 302. The justice having credited defendant’s testimony in this regard, the judgment must be held to rest upon sufficient evidence. The exceptions taken by appellant to rulings upon the trial are not relied upon nor discussed by counsel in support of the appeal, and therefore have not been made the subject of consideration. The judgment is affirmed with costs. Bookstaver, J., concurs.


text:
    John Larkin, Resp’t, v. William Sullivan, as President, etc., App’lt.

      (New York Common Pleas, General Term,

      Filed August 1, 1894.)

    Appeal—Verdict.
    Verdict will not be set aside, where there is enough evidence to sustain it, in the absence of sympathy, passion, prejudice oí hasty action on the part of the jury.
    Appeal from a judgment rendered in the district court of the city of New York for the fifth judicial district.

      Samuel Mullen, for app’lt; Abraham H. Sarasohn, for resp’t.
   Bookstaver, J.

This action was brought to recover the sum of $75 which plaintiff claimed as a funeral benefit by reason of the death of his wife, due to him by the defendant association, because he was a financial member of the district lodge. The Case was tried by the justice with a jury. The defense was, twofold, first that the plaintiff was over forty years of age when he joined the lodge, and second that he was not a member in good standing at the time because he was in arrears for dues for a period of three months prior to the death of his wife. The plaintiff’s testimony in the case was somewhat contradictory, but on the other hand the defendant’s testimony was vague and indefinite. There was enough evidence offered by the plaintiff to sustain his contention if believed by the jury, and their verdict shows they did believe him. Neither of the questions litigated before them were of a nature to induce sympathy on one side, or passion, prejudice or hasty action on the other. We therefore do not think the verdict should be disturbed. As far as the record shows, no exceptions were taken during the course of the trial, and none were argued before us. The judgment should therefore be affirmed with costs. Gtegerich, J., concurs.


text:
    L’Artiste Publishing Company, App’lt, v. Isaac Walker, Resp’t.

      (New York Common Pleas, General Term,

      Filed August 1, 1894.)

    Appeal—Determination.
    Where the decision of the trial court upon the several issues presents an inconsistency which requires a reversal of the judgment, a new trial'of all the issues must he ordered.
    Appeal by plaintiff from so much of a judgment of the first judicial district court as fails to award the amount claimed upon the first cause of action alleged. Plaintiff sued upon a contract in accordance with which advertising was alleged to have been done for defendant by the former, at an agreed price. A claim for the value of certain printing was also made, as a second cause of action. Defendant pleaded a general denial as to the first cause of action, and set up as a further defense the allegation that the contract for the advertising in question was made with one Tongue and that payment was agreed to be accepted by the latter in the form of clothing furnished by defendant, a tailor. To the second cause of action the answer was a general denial. The justice gave judgment for the plaintiff upon the second cause of action and found in favor of defendant upon the first.

      C. J. G. Hall, for app’lt; Christian G. Moritz, for resp’t.
   Per Curiam.

It appears that the defendant affirmed the contract for advertising, claimed to have been made with Tongue, one year after the same had been performed. A bill for clothing was sent in accordance with the agreement as alleged by defendant, wherein credit for the agreed price of the work was given. The printing work, which was the subject of the second cause of action, having been furnished by plaintiff through negotiations had with Tongue in manner similar to those which took place as to the advertising, and with the same provision for payment “ in trade,” the finding in favor of plaintiff upon that issue establishes the fact that Tongue’s arrangement for individual payment in clothing furnished, was held by the justice to in no way affect the plaintiff’s right of recovery, and it appears from the defendant’s testimony that the said Tongue was understood to be acting for the plaintiff corporation. Moreover, it appears from a letter sent by defendant to plaintiff shortly before suit was brought, and received in evidence, that the former re-affirmed his subsequent acceptance of the contract as performed by expressing his reliance upon the bill for clothing above referred to, with the credit for advertising work, and threatening to sue plaintiff for the balance due thereon. Upon the record, the determination of the justice upon^the several issues presents an inconsistency which would require a reversal of the judgment, and, in this connection, a new trial of all the issues must be ordered. Goodsell v. Western Union Tel. Co., 109 N. Y. 147; 15 St. Rep. 73.

Judgment reversed and a new trial ordered, with costs to abide event.


text:
    Frank Lawson, Resp’t, v. Giuseppe Cirrito et al., App’lts.

      (New York Common Pleas, General Term,

      Filed August 1, 1894.)

    Appeal —Modification of judgment.
    The appellate court cannot modify the amount of recovery for the purpose of affirmance, where it is unable to determine to which witnesses credit was given upon the trial.
    Appeal from a judgment in the district court in the city of New York for the ninth judicial district. Action upon a promissory note.

      A. C. Fransiola, for app’lts; E. II. Moeran, for resp’t.
   Per Curiam.

There is no basis upon the evidence for the judgment as here rendered by the justice, and this does not appear to be a case where the appellate court may properly modify the amount of recovery for the purpose of affirmance, for we are unable to determine to which particular witnesses credit was given upon the trial. A recovery of $214.83, the amount of the note and protest fees, together with two months interest, or of such amount less $175, the value of a ring claimed by defendant to have been accepted by plaintiff in part payment, alone could find support upon the record. The award of $125.99 is not secundum allegata et probata and forms no guide whereby this court may find the true intention of the justice’s decision. The action must, therefore, be sent back for a new trial, as in Field v. Kahn, 4 Misc. R. 600.

Judgment reversed and new trial ordered, with costs to appellant to abide the event.


text:
    John Lees, Resp’t, v. Nathan Rittermann, App’lt.

      (New York Common Pleas, General Term,

      Filed August 1, 1894.)

    Boabd of health—Pboof of obdeb.
    The mere service of notice is no legal proof of the action of the board.
    Appeal from a judgment of the district court in the city of New York for the second judicial district.

      C. Cohn, for app’lt; John Callagan, for resp’t.
   Per Curiam.

If it is sought to make a party liable by reason of an order of the board of health, there must be legal evidence of the making of such order by that board. The mere service of notice is no legal proof of the action of the board. No other-proof than the service of notice was offered in this action, which is not sufficient in this case to make the appellant liable to do the work required by the board. For this reason the judgment must be reversed and a new trial ordered with costs to the appellant to abide the evept.


text:
    Ivanhoe B. Ludington, Resp’t, v. John Dudley, App’lt.

      (New York Common Pleas, General Term,

      Filed August 1, 1894.)

    Lottery—Ives pool law.
    The appeal, in this case, was determined, upon the authority of Irving y, Britton, 58 St. Rep. 836.
    Appeal from a judgment of the district court, in the city of New York for the first judicial district, rendered by the justice upon a stipulated state of facts. Action for money had and received.

      John Callahan, for app’lt; Howe & Hummel, for resp’t.
   Bischoff, J.

The facts in this case, as admitted by stipulation, present the identical question which was decided by this court in the case of Irving v. Britton, 8 Misc. R. 201; 58 St. Rep. 836, upon which authority this appeal is to be determined. But apart from the adjudication upon the constitutionality of the Ives Pool Law, (ch. 479, Laws 1887) as presented by the prevailing opinion in that case, the defense in this action must fail upon the ground taken in the concurring opinion handed down therewith. 8 Misc. 206; 58 St. Rep. 836. Hence the determination of the supreme court in the case of Reilly v. Gray, 77 Hun, 402 ; 60 St. Rep. 45, wherein contrary views as to the constitutionality of the act were expressed, even if it could here be observed with propriety by this general term, is not available as a support to appellant’s contention, for we should be content to rest our decision upon the express ground taken in the concurring opinion in Irving v. Britton, above referred to.

Judgment affirmed, with costs.

Bookstaver, J., concurs.


text:
    James W. Lyon, App’lt, v. Thornton N. Motley et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed August 1, 1894.)

    1. Contract—Construction.
    A contract should be so construed as to give effect to every word and expression contained therein.
    2. Same.
    The parties to a contract will be bound by that construction which they themselves give it.
    3. Same—Ambiguity.
    In case of ambiguity in a contract, evidence of custom in the particular business is admissible, in order to elucidate its meaning.
    4. Same—Return of goods.
    Where the vendee, under contract of sale, has the privilege of rejecting the goods, it is his duty to return them at the point specked in the original or modified contract.
    Appeal from a judgment rendered in favor of the defendants in the district court of the city of New York for the eleventh district.

      Charles S. Kellogg, for app’lt; Charles W. Dayton, for resp’t
   Bookstaver, J.

This action was brought to recover the value of goods alleged to have been sold by the plaintiff to the defendants who then were and now are co-partners in business under the firm name of Thornton N. Motley & Co. On the 18th o£ March, 1893, Bleecker Bangs, defendants’ buyer, gave to J. H. Sykes, plaintiff’s salesman, the following order: “Office of Thornton N, Motley & Co., 43 John street, New York, March 18th, 1893, B. 9897. Order No. B 9897. J. W. Lyon & Co., city. 1 Please ship the following goods at once. Twenty (20) large bales of wool waste as sample at 5J cents lb. delivered at our store; quality guaranteed and subject to return if rejected. Deliver all you can at once.’ Terms, 60 days from date of invoice. Do not render bill until entire order is delivered. Ship to 43 John street, N. Y. Mark-, care of--. Ship via truck. Charge to our account. Render bill promptly, giving order, number and stating when and how the goods were shipped. Render statement the 1st of month succeeding purchase.’’ (Signed) B. Bangs, Buyer. In accepting this order;' the following memorandum of sale was given:

“March 18th, 1893. Sold to Messrs. T. N. Motley, 43 John street, the following goods: 20 large bales of wool waste as sample at 5J cents, delivered at store. . Subject to terms of order B 9897. Terms 60 days cash. Shipping instructions, by truck before March 25, 1893, J. W. Lyon & Co., per (signed) J. H. Sykes.”

Pursuant to this contract plaintiff delivered ten bales of wool waste to the defendants, and they afterwards refused to allow the plaintiff to supply the remaining ten bales in completion of the contract, and on the trial claimed to have returned the ten bales that were delivered. In delivery of the ten bales in controversy, the defendants sold and shipped them to their customer, who rejected the same, and the defendants notified plaintiff by letter of March 30th, 1893, of the rejection, and asked him to advise them to what point he desired the rejected waste shipped. The first question arising upon this appeal is as to the true intent and meaning of the contract made between the parties.' Appellant contends it was merely a sale by sample and nothing more; the respondents contend that while it was a. sale by sample, it also provides for the return of the goods if rejected by their customer or customers. In the construction of such a contract the chief question is what was the intention of the parties in making it. When the contract was made, plaintiff knew that the goods were for a customer of defendants. Plaintiff’s salesman was told by defendant’s buyer that if the goods were not accepted, they would be returned, and this before the contract was made. These facts tend to show that the understanding of the agents of both parties that the clause in the contract “and subject to return if rejected” had a special significance and meaning. Again, it is a fundamental principal of construction that a contract should be so construed as to give effect to every word and expression contained therein. Miller v. Hannibal & St. J. R. R. Co., 90 N. Y. 430; Barhydt v. Ellis, 45 N. Y. 107. If the plaintiff’s construction should prevail, then there would be no meaning whatever to this clause, and there could be no object in inserting it In the light of the knowledge of the parties, we think the court below correctly construed the contract, and that the true meaning of it was that the goods were not only to be up to the sample, but even if up to the sample they were to be returned if the customer of the defendant rejected them. This being the case the fact that the defendants did not examine the goods after an opportunity to do so, but shipped them directly to their customer, is of no significance. The right to return did not depend upon whether or not the goods were up to sample, but whether or not they were accepted by the customer.

Inasmuch as there was some ambiguity in the clause under consideration, the court properly admitted evidence of the custom in the railroad supplies business, in order to elucidate its meaning, especially in view of the fact that plaintiff’s agent was informed that the goods were intended for that business. But while all this is true, we think there must be a new trial in the action for the reason that there is nothing in the evidence to show that the defendants returned the goods to the plaintiff or to any place of business belonging to him. The parties to a contract will be bound by that construction of the contract which they themselves give it. That the defendants considered it their duty in making a return under the contract in question to return the goods to the plaintiff’s place of business in Hew York, is shown by their agent’s testimony, who says “I asked Mr. Sykes the location of their factory, in Jersey Oity; I told him we would ship the. goods to Jersey Oity in preference to Hew York where they would have to be carted over the river again ; I said we would instruct our consignee to make the return to Jersey City. But while he did this and knew the location of the factory, neither the defendants nor their agents claimed to have returned the goods to that factory. On the other hand we gather from the evidence that the nearest approach to this was to ship the goods to the Jersey Oity railroad depot without paying charges thereon and to notify the plaintiff that they were there. This was not such a return as the law requires nor such as was contemplated by the parties. Respondents seek to overcome this difficulty by claiming that the appellant waived his right to a return of the goods to his factory.' The only basis for this contention are two letters written by Mr. Bangs, buyer of the defendants, to the plaintiff, one dated March 30th, 1893, in which he notifies the plaintiff of the rejection of the goods delivered and ask him to advise the defendants as to the place where he desired the rejected waste shipped. In response to this letter, Mr. Sykes, plaintiff’s salesman, had an interview with Mr. Bangs m which it was agreed that the goods should be returned to Jersey City, the location of the plaintiff’s factory being communicated to Mr. Bangs at the time. The other letter is dated April 5th, 1893, and notified the plaintiff that the goods had been shipped to him in car Ho. 903 of the Philadelphia & Reading road, and asked him to take care of the rejected material at once. This clearly was not a sufficient return or offer to return. As we have before stated the freight charges were not paid, the plaintiff was not bound to pay them by the terms of the agreement, nor was he bound to seek the goods at the railroad depot. On the other hand it was the defendant’s duty to return the goods to the plaintiff at the point agreed upon, which, under the modification of the contract, was at his factory in Jersey City. For this reason the judgment must be reversed and a new trial ordered with costs to the appellant to abide the event. Bischoff, J., concurs.


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    Oil Seed Pressing Company, App’lt, v. Hutchison, Resp't.

      (New York Common Pleas, General Term,

      Filed August 1, 1894.)

    Guaranty—Conditional.
    A condition, made material by the terms of the guaranty, must be complied with before liability will attach to the guarantor.
    Appeal from a judgment of the district court in the city of New York for the second judicial district.

      G. H. Pettit, for app’lt; W. W. Culver, for resp’t.
   Per Curiam.

If a condition is made material by the terms of the guarantee, that condition must be complied with before liability will attach to the guarantor. The instrument under consideration states in effect, I will be guarantor for everything sold up to the present time; hereafter I propose to be the purchaser of these goods ; and as to future goods, if you will invoice them to me, I will be responsible and send you a check when due. Th,e court of appeals has decided in Henry McShane Co. v. Padian, 142 N. Y. 207 ; 58 St. Rep. 651, that a guarantor may not be made liable by a forced construction of the language of the guarantee, for that which he did not undertake, but that the apparent meaning of the words used determines the extent of the liability.

We think the judgment should be affirmed, with costs.


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    Samuel B. Parmelee, Resp’t, v. The Associated Physicians and Surgeons, App’lts.

      (New York Common Pleas, General Term.

      Filed August 1, 1894.)

    Corporations—Officers—Authority.
    A contract for employment, made with a person by the treasurer of a corporation in disregard of its by-law restricting the execution of such contract' by that officer alone, is not binding upon the corporation.
    Reargument of an appeal from a judgment of the district court in the city of New York for the seventh judicial district rendered by the justice, without a jury, in favor of the plaintiff. Action upon a contract of employment made by plaintiff with the treasurer of the defendant corporation, the act of such officer purporting to be the act of the corporation. The principal defense was that the defendant was not chargeable under the contract in view of the fact that a by-law of the corporation prohibited the making of an agreement involving a liability to the extent of that in suit, without the approval of the president, which had not here been given.

      Charles De Hart Brower, for app’lt; David B. Simpson, for resp’t
   Bischoff, J.

Further consideration of this case, upon re-argument, but serves to strengthen our opinion that the judgment is not to be supported. An examination of the later decisions of the court of appeals taken with those of earlier date, leads to the conclusion that the rule to be deduced, with regard to the effect of by-laws restrictive of the powers of an agent as officer of a corporation upon a contract entered into through such agent or officer opposes a recovery upon his contract by the plaintiff herein. This rule may properly be stated to be that .if the officer assuming to act for the corporation, in the making of a contract with a third person, is one whose office is attended with inherent general executive authority for the ordinary conduct and management of the corporate business, and the contract is one which could, therefore, be delegated to an officer or agent, the officer so assuming to act is clothed with apparent authority upon which such third person may rely in the absence of notice of limitations upon the officer’s authority which are imposed by the by-laws or the proceedings of the board of directors; but, if the officer, with a liability for whose act the corporation'is sought to be charged, is one to whose office there is attached no inherent executive authority then, and in that event, the third person dealing with the officer in an executive capacity is chargeable with notice of an apparent want of authority and so deals with the latter at his peril ; and in such a case if the officer’s authority to make the contract is disputed, it is incumbent upon such third person to establish the authority by proper evidence. If the by-laws which are relied upon as evidence impose certain limitations or restrictions upon the exercise of the authority, such limitations or restrictions may not be disregarded but must be held to determine the extent of the authority, Rathbun v. Snow, 123 N. Y. 343 ; 33 St. Rep. 600; Patterson v. Robinson, 116 N. Y. 193 ; 26 St. Rep. 685; Jemison v. Citizens Sav. Bank, 122 N. Y. 135; 33 St. Rep. 335 ; Wilson v. Kings Co. El. Ry. Co., 114 N. Y. 492 ; 24 St. Rep. 81 ; First Natl. Bank v. Ocean Natl. Bank, 60 N. Y. 278; Lee v. Pittsburgh C. & M. Co., 56 How. Pr. 373; aff’d, 75 N. Y. 601. In Patterson v. Robinson, 116 N. Y. 193; 26 St. Rep. 685, it was held that where a contract, made in the name of a corporation by its president, is one which the corporation had power to authorize its president to make, a presumption that such officer was so authorized obtains, but in Jemison v. Citizens Sav. Bank, 122 N.Y. 135 ; 33 St. Rep. 335, the court says that a party dealing vnth an agent of a corporation is chargeable with knowledge of the extent of such agent’s powers. In Wilson v. Kings Co. Ry. Co., 114 N. Y. 492 ; 24 St. Rep. 81, it was held that the burden is upon the party claiming under a contract with a corporation, when made through an agent to prove the authority of the person so assuming to act as agent; the party thus dealing with the corporation being chargeable with knowledge of the actual or apparent authority of its agents or officers, and to the same effect is the case of First Natl. Bank v. Ocean Natl. Bank, 60 N. Y. 278. In Chemical Nat. Bank v. Kohner, 85 N. Y. 189, the court held that the president and cashier, general executive officers, of a bank would be presumed to have authority to enter into contracts in the course of the usual business of the bank, and in Lee v. Pittsburgh C. & M. Co., supra, the president of a corporation was held to be possessed of apparent general executive powers in furtherance of the business of the corporation, and so in Rathbun v. Snow, 182 N. Y. 343; 33 St. Rep. 600, in dealing with a case involving the apparent powers of a general managing agent of a corporation, the court say that these apparent powers are not to be restricted, as to third persons by secret limitations contained in the by-laws. But the treasurer of a corporation is an agent with special powers merely and cannot bind such corporation by the performance of acts without the scope and ordinary course of the duties of his office (Boone on Corporations § 143) and as also of the secretary (id. § 145). Applying the rule before stated to the decisions of this court in Westerfield v. Radde, 7 Daly, 326; Rathbun v. Snow, 15 id. 141; 22 St. Rep. 227, and Bohm v. Loewer’s, etc, Brewery Co., 16 Daly, 80; 30 St. Rep. 424, it is apparent that the rule stated in those cases, namely, that persons contracting with a corporation through an officer thereof are affected by limitations imposed by the by-laws upon the latter’s authority, and of which by-laws such person may have had no actual notice, must be accepted with the qualification that it applies only to cases where the officer assuming to act for the corporation was not, by virtue of his incumbency of an executive office, clothed with apparent authority to act in the premises. Further in the case of Bohm v. Loewer’s Brewery Co., supra, the contracting party had knowledge of the by-law requiring that such contracts as that in suit should be signed by the treasurer as well as the president, and it appears that a request to approve the contract was made of the former, in accordance with such knowledge, and refused. It follows from the views expressed that the contract for employment made with plaintiff by the treasurer of the defendant corporation, in disregard of the by-law restricting the execution of such a contract by that officer alone, was not binding upon the defendant and that this action, as brought upon such contract must fail.

The judgment should therefore be reversed and the complaint dismissed with costs.

Bookstaver, J., concurs.


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    The People, Pl’ff, v. Michael Byrnes et al., Def’ts.

      (New York Common Pleas, General Term,

      Filed August 1, 1894.)

    Judgment—Forfeited recognizance. ■
    Judgment, entered on a forfeited recognizance, will not be vacated, where the application is not accompanied by a certificate of the district attorney to the effect that the people have not been prejudiced.
    Motion to vacate judgment entered on forfeited recognizance.

      John R. Fellows, for pl’ff; Marston & Eilan, for def’ts.
   Per Curiam.

This application is not accompanied by a certificate of the district attorney to the effect that the people have not been prejudiced.

Application denied with leave to renew.


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    The People, Pl’ff, v. Thomas Meyer et al., Def’ts.

      (New York Common Pleas, General Term,

      Filed August 1, 1894.)

    Judgment—Forfeited recognizance.
    Judgment on forfeited recognizance will be vacated where the principal died before the recognizance was forfeited.

      John R. Fellows, for pl’ff; Henry B. Salisbury, for def’ts.
   Per Curiam.

Motion to vacate judgment on forfeited recognizance granted on the ground that the principal died before recognizance was forfeited.


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    Matilda Pfaff, Resp’t, v. Helen Reddick, App’lt.

      (New York Common Pleas, General Term,

      Filed August 1, 1894.)

    Lease—Terms.
    All promises by the landlord to the tenant before the execution of the lease are merged in it.
    Appeal from a final order rendered in the district court of the city of Hew York for the sixth judicial district.

      R. W. Newhall, for app’lt; Straley, Hasbrouck & Schloeder, for resp’t
   Per Curiam.

Whatever was promised by the landlord to the tenant before the execution of the lease was merged in that instrument, and as the lease contains a covenant that the tenant will repair, and keep in repair, the premises during the demised term, the fact that the furnace and heater required some cleaning and other repairs in order to heat the premises does not release the tenant from the obligation to pay her rent.

The final order should, therefore, be affirmed, with costs.


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    Anna J. Ripley, Resp’t, v. Virginia Jaussen, App’lt.

      (New York Common Pleas, General Term,

      Filed August 1, 1894.)

    Appeal— Reversal.
    To authorize a reversal, the error must have operated preiudiciallv to the appellant.
    Appeal from a final order of the district court in the city of Hew York for the eighth judicial district.

      J. F. Higgins, for app’lt; W. W. Foster, for resp’t.
   Per Curiam.

Error merely does not suffice to support an appeal. To authorize a reversal the error must have operated prejudieially to the appellant. No possible prejudice here resulted from the judgment rendered, for it merely accomplished what appellant was concededly willing to have occur at the time of the trial.

The order must be affirmed, with costs.


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    Isaac Rosenstein, App’lt, v. William I. Fox, Resp’t.

      (New York Common Pleas, General Term,

      Filed August 1, 1894.)

    1. Appeal—Case—Statement.
    Where there is no certificate in the case showing that it contains all the evidence, there can be no review of any question of fact.
    2. Same—Haemless.
    Where the jury has all the data for making a mathematical computation, it is not reversible error to allow a party to give the result of his calculation.
    3. Same.
    That the court gave the pleadings a construction under which the appellant would not have been entitled to an advantage already enjoyed by him, is no injury to him.
    4. Same.
    Unless the appellant is prejudiced by admission of incompetent evidence, no sufficient ground for reversal is presented.
    Appeal from a judgment rendered in favor of the defendant upon the verdict of a jury at trial term.

      Edward W. S. Johnston, for app’lt; Charles Strauss, for resp’t.
   Bookstaver, J.

This action was brought to recover the sunl of $3,'000 with interest thereon from May 27th, ,1884, on a promissory note made, executed and delivered by the defendant to the plaintiff. The answer consist first of a general denial, second that the note was made for the accommodation of one Nathan Bernstine and was given in renewal of a previous usurious note which bore usurious interest at the rate of seventeen and three-twentieths per cent, per annum; third, that the plaintiff was not the real party in interest and was not a bona fide holder of the note because before maturity the note was paid to Nathan Bernstine and Nathan Bernstine held the note and acknowledged himself the possessor thereof before maturity and because the plaintiff made no claim against defendant until the commencement of the action; and fourth, that the defendant paid the note to Nathan Bernstine. The plaintiff at the close of the case moved for the direction of a verdict for the full amount claimed, which was denied, to which ruling he duly excepted.. In order to determine whether this ruling was right or not, as the appellant himself contends, a review of the evidence is necessary. But there is no certificate in the case showing that it contains all the evidence. Under the firmly established rule of this court and the court of appeals, there can therefore be no review of any such question; Upington v. Pooler, 47 St. Rep. 30 ; Hyman v. Freedman, 45 Id. 636 ; Claflin v. Flack, 36 Id. 728; Howe v. Woolsey, 7 Misc. 33 ; 57 St. Rep. 507 ; Smith v. Smith, 57 St. Rep. 86 ; Porter v. Smith, 107 N. Y. 531; 12 St. Rep. 479; Aldridge v. Aldridge, 120 N. Y. 614; 31 St. Rep. 948.

A'i examination of the appellant’s exceptions to portions of the charge and to the admission of certain evidence fails to disclose any errors chiefly because, with a few exceptions to be considered later, he relies upon alleged deficiencies in the evidence as a basis for demonstrating the errors cannot be considered as the case is presented for the reason before stated. Such for instance are the exceptions to the trial judge’s instructing the jury that they were to determine the question of payment; or whether or not the plaintiff was a bona fide holder for value; or whether or not there had been usury. Such also are the exceptions to the admission of testimony as to payments of usurious interest upon the original note (upon the ground that the defendant must first show that the plaintiff was not a bona fide holder for value before maturity); also the objection that there was no evidence of Bernstine’s agency to make the alleged usurious payments of interest; and the objection that it had not been shown that such payments were made in pursuance of an agreement and not as a gratuity. Other objections which are unavailing for the same reason need not be enumerated. Wc do not think that the admission of defendant’s testimony as to the rate per annum of interest which he had paid upon the old note presents reversible error. True it was in one sense a conclusion but it was immediately preceded by a statement of the amounts and dates of payments of interest, and the successive notes showing the principal sum and the date from which interest ran were before the jury. Just here it might be observed as showing the case presented does not in fact contain all the evidence given at the trial, that we have failed to find the note of October 27th printed in the case or referred to in the index ; but from the reference to it at folio 41 as “Exhibit 2,” it is clear that it was in evidence. The jury consequently had all the data for making the mathematical computation, and it cannot be said that allowing the defendant to give the result of his calculation is sufficient ground for reversal. Besides, from our own computation based upon the payments, principal and dates as testified to by the defendant, supplemented and corroborated by in-information gathered 'from other portions of the case, it appears that his answer “very nearly eighteen per cent.” was substantially correct. The exact rate was immaterial provided it exceeded the legal rate, which it certainly did. The exception to the trial judge’s interpretation of the pleadings in his charge, presents no error. The appellant had enjoyed the privilege of opening and closing and the fact that the judge gave the pleadings a construction under which the appellant would not have been entitled to an advantage already enjoyed, was certainly no injury to him. No burden of proof was improperly placed upon him, as is shown by other portions of the charge, nor is any claim made that such was the case. In Clark v. Smith, 9 Misc. 164; 60 St. Rep. 634, we discussed at length such a situaron, and nothing further need here be said. Auerbach v. Peetsch, 44 St. Rep. 494, relied upon by the appellant, is widely distinguishable from the present case. There the judgment was reversed because the appellant had been deprived of the privilege of the affirmative. Some of the remaining exceptions are to the admission of evidence objected to as immaterial and irrelevant. But it is not shown, nor does it appear, how the appellant- was thereby prejudiced and therefore no sufficient ground for reversal is presented. Besides, not having all the evidence before us, it is difficult to pronounce upon the question of immateriality and irrelevancy. Judgment should be affirmed with costs. Bischoff, J., concurs.