author: Beekman, J.

text:
    Sarah A. White, Pl’ff, v. Dionis Frankel et al., Def’ts.

      (Supreme Court, New York Special Term,

      Filed April, 1895.)

    Rbceivbks—Levy.
    After a temporary receiver has been appointed in an action which seeks the equal distribution of all the assets of an insolvent firm among the creditors, the levy of an attachment on the fund.s in court by a portion of the creditors only should not be permitted, where the effect of such permission is likely to result in the absorption of the greater part, if not all of the fund, especially where it is reasonably certain, from the facts disclosed by the moving papers, that the receivership will ultimately be made permanent.
    Motion to confirm an order authorizing a sheriff to levy attachments on the assets in the receiver's possession.

      Ira Leo Bamberger, for the attaching creditors ; Gayley, Baucus & Fleming (.Hornblower, Byrne & Taylor, of counsel), for the receiver ; llirsch & Basquin, for the sheriff ; Filis B. Southworth, for pl’ff; Jarry A. Wernberg, for def’ts.
   Beekman, J.

On the 20th day-of March, 1895, Alexander Gfulick was appointed by this court as receiver of the copartnership assets of the firm of Frankel & Lansing, in an action brought by the plaintiff, who was the special partner in said firm, the general partners being the defendants above named. The receiver in question gave the bond of $30,000 required in the order, which was approved by a justice of this court, and has been duly filed. Immediately upon his appointment, lie entered into possession of the copartnership property, consisting of the Clarendon Hotel, in the city of Brooklyn, which was held under lease by said copart-, nersbip, and was being run by the defendants. The complaint sets forth the copartnership relation, and also various acts of bad management,- at least, on the part of the defendants; the utter insolvency of the firm ; its indebtedness in an amount exceeding $173,000; and that, under the- most favorable conditions, its property would not be sufficient to pay fifty cents on the dollar. The prayer of the complaint is that the limited partnership be dissolved ; an account taken in respect to the business; that the property of the firm be sold, and the partnership debts and liabilities paid off; and that a receiver be appointed pending the action, and after judgment. Affidavits were presented in support of the complaint, showing that a large proportion of the creditors consented to the receivership, and the written consent of the defendants themselves was also produced, and filed with the moving papers, in the following words: “We hereby consent to the appointment of a receiver in this action, and of all the assets, as prayed for in the complaint, as maybe determined in this action.” It will thus be seen that the suit has been brought and is maintained in the interests of the creditors, and that the case is not one in which a receiver is sought of a solvent concern, owing to irreconcilable differences and quarrels between partners.

On the 25th of March two attachments were sued out against the firm,—one by Peter J. Montague, and the other by Benoit Wasserman,—which were granted by Mr. Justice Brown in the city of Brooklyn, on the ground that the defendants had assigned, disposed of and secreted their property, with intent to cheat and defraud their creditors; Montague and Wasserman claiming to be creditors of the partnership. At the same time that the warrants of attachment were signed, Mr. Justice Brown made an order, based upon the same papers upon which the attachments had been granted, by which he required the receiver “to forthwith allow the sheriff of the county of Kings to forthwith levy the said warrants of attachment upon the goods, chattels, and property of the said Dionis Fran Ice 1 and Edward B. Lansing, in the possession or under the control of the said receiver.” This order was not a court order, nor was it made upon any notice to the receiver, or to any of the parties to the action in which the receiver was appointed; and the first intimation which the receiver had of its existence was when the sheriff presented himself at the hotel, took possession, and ousted him from his receivership. If this ex parte order is to stand, the whole object for which the receiver was appointed by this court will have been defeated; the receivership, in effect, will be dissolved ; and any judgment which may be recovered in the action will be a barren one. It is impossible that such a proceeding as this should be sanctioned in any court of equity. It is contrary to reason and fundamental principles of justice. There is nothing in the papers which justifies the slightest inference that the action in which the receiver was appointed was a collusive one. On the contrary, the evidence is most satisfactory that the action is a timely and proper one, and that its purpose is to secure a liquidation of the copartnership affairs in a manner which shall be most favorable to the creditors. Furthermore, the papers show that ■substantially all of the creditors, excepting the attaching creditors, whose claims represent only a small proportion of the aggregate indebtedness, have approved of the appointment of the receiver, and are desirous that the receivership shall continue, and the assets of the partnership applied to the liquidation of its debts. While the receiver was engaged in promoting this laudable purpose, he was served with the attachments in question, and put out of possession by the sheriff of the county of Kings, under the ex parte order made by a judge out of court, which is now the subject of this motion. If orders of this kind may be granted without notice, a new and extremely new method of dissolving receiverships ■and depriving a court of equity of property which it was taken into the custody of the law through its duly-appointed officer, has been discovered by the learned counsel for the attaching creditors. But it is unnecessary to enter upon any extended argument for the purpose of showing the impropriety of the practice which has been adopted by the attaching creditors in this case. The thing speaks for itself. If the creditors who have sued out these attachments considered that it was their right to have them levied upon the copartnership property, notwithstanding the receivertsliip, they should have applied to this court, on proper papers, for the relief which they sought, and after notice to the receiver and the parties to the action, when the question raised could have been properly considered, and the matter appropriately disposed of. The course adopted, however, is utterly inconsistent with anything like orderly procedure in the administration of justice, and calls for a prompt and unqualified reversal. The attorney for the attaching creditors, in meeting the motion mad e to vacate the ex parte ordér, has, in turn, made a motion before me to confirm the order in question,—a tardy recognition of the duty which originally rested upon him, of applying to this court in the first instance for permission to make his levy.

This brings up the question as to whether this court, after having appointed a receiver in an action which seeks the equal distribution of all of the assets of an insolvent partnership among the creditors, should permit the levy of attachments on the funds in court by a portion of the creditors only, where the effect of such permission is likely to result in the absorption of the greater part, if not all, of the fund. If this may be,permitted, it is quite plain that the purpose of the action, and the object sought by the appointment of the receiver, will be utterly defeated. Substantially all of the creditors, with the exception of the two who have obteined these attachments, have rested with confidence upon the appointment of the receiver as sufficiently protecting their rights, and have not sought to secure preferences over one another by attachment. The position, therefore, of the attaching creditors, in this case, is not one which Commends itself at all to the favor of the court; and, unless their right under the law is so clear as to control me in the disposition of this case, I shall not grant the order asked for, confirming the levy. I do not consider that I am so bound. It is true that the receiver in this case is a temporary receiver, and that he is little more than the custodian of the copartnership property. The title to the property is still vested in the copartners, and will remain in that condition until final judgment, and the appointment of a permanent receiver. But, upon the appointment of a permanent receiver, it will become his duty to realize upon the assets of the estate, and to pay the debts of the copartnership, in so far as the moneys in his hands will admit of the same. It is plain that there must be judgment for the plaintiff in the action, and that the receivership will be made permanent. The consent above referred to, signed by the defendants, that a receiver be appointed as prayed for in the complaint, is tantamount to a consent for judgment. It is therefore a matter of paramount importance that the assets of the copartnership should be protected and preserved by the temporary receiver, in order that the final judgment may be made effectual. The attaching creditors will fare as well as all of the other creditors of the concern, and have therefore no just reason to complain of the appointment of the receiver. The fact that they may be deprived-of a preference which they have sought to obtain by attachment does not, as I have said, entitle them to any consideration on that ground. Courts of equity favor the equal distribution of the assets of insolvent estates, and, as the principiéis a just and wholesome one, attempts to secure preference by attachment after the-court has assumed control over the estate should not be sanctioned.

The attorney for the attaching creditors appeals to the case of Webster v. Lawrence, 47 Hun, 565 ; 15 St. Rep. 140, in support of his right to make the levy in question. The facts in that case, however, are widely different from those before me. In that case a general assignment for the benefit of creditors was made by the firm of A. Webster & Co. Subsequently, Horace Webster, one of said firm, brought an action to obtain a partnership dissolution and accounting, and obtained the appointment of a temporary receiver. The action was based on an allegation that the general assignment was fraudulent. A creditor sued out an attachment against the firm, and sought to levy on the property which had passed from the assignees into the hands of the receiver, and his claim to make the levy in question was based upon the contention that the general assignment was fraudulent, as against creditors. It is plain, therefore, that the ultimate success of the attaching creditor depended upon his ability to establish the voidness of the general assignment; and as the receiver was appointed in an action.between the copartners, brought for the purpose of testing the validity of the assignment, the rights of the attaching creditor, which could attach only in case the general assignment was void, would naturally be superior to the claims of the receiver. The question in the case arose on a motion, on notice, on the part of the attaching creditor, made in the action in which the receiver was appointed, that the sheriff might be allowed to levy the attachment in question against the property of H. Webster & Co. in the hands of the receiver. Under the circumstances of that case, which were somewhat peculiar, the court held that there was no reason why the plaintiff in the attachment should not be at liberty to pursue his rights, notwithstanding such property had been placed in the custody of the court. The case, as reported, unfortunately, is very meager in its statement of facts. Those which I have stated I have obtained from a copy of the brief of the counsel for the attaching creditor, which was submitted to me upon the argument. In the ease at bar, although the attaching creditors have made some pretense of claim that the action is a collusive one, the evidence before me utterly fails to substantiate it; and the reason for granting the leave to levy which existed in the case of Webster v. Lawrence, namely, that the attaching creditor should have the right to test the title to the property in the manner provided by law, finds no counterpart in this case. I do not consider, therefore, that that case is any authority for the granting of the application now made for leave to levy on the property in the hands of the receiver. If the attaching creditors in this case fear that proceedings may be taken in the action, such as a discontinuance, or any other course that would be prejudicial to them as creditors, they are at liberty to move to be made parties to the action, when the question as lo> the propriety of admitting them will be determined by the court in their favor, if the facts presented by them are found to justify the exercise of the discretion of the court in that regard; and if the receivership should be dissolved, and the property restored to the co-partners, the court would doubtless adjudge that the attaching creditors had a lien or charge upon the fund, by virtue of the issuing of the attachments in question, which would be suitably provided for before the property was returned to the co-partners. Of course, upon the facts of the case presented to me, it is exceedingly improbable that there will be any such outcome of this litigation ; but, while it is improbable, it is still possible, and the fact of its possibility may be a sufficient justification for the bringing in of these attaching creditors as parties defendant in the action.

For the reasons which I have stated, the motion to vacate the order made by Mr. Justice Brown should be granted, with costs, the levy made thereunder by the sheriff of Kings county set aside, and the sheriff directed to restore the property in question to the receiver. The motions made - by the attorney for the attaching ■creditors to confirm said order are denied, with costs.


source: Caselaw Access Project

author: Herrick, J.

license: Public Domain

text:
    Samuel S. Hatt, Pl’ff, v. William Hagaman et al., Def’ts.

      (Supreme Court, Albany Special Term,

      Filed April 2, 1895.)

    1. Vendor and purchaser.
    The court will not decree a specific performance, on the part of the vendee, of a contract to purchase real estate, where there is doubt of the ability of the vendor to convey a good, marketable title to the property.
    3. Same.
    Specific performance of the contract to purchase was not enforced in this case on the ground that the vendor had no power or authority to sell the property and could not give a legal title thereto, or that the question was, at least, a serious one and not free from doubt.
    Action for specific performance.

      Mead & Hatt, for pl’ff ; Ward & Cameron, for def’ts.
   Herrick, J.

On the 1st day of March, 1856, William Smith, of the city and county of Albany, in this state, executed and delivered to Otis Allen a deed of all the property, both real and personal, which had theretofore been assigned to him by one Thomas S. Bleeker, in trust to pay the debts of Thomas S. Bleeker, the expenses attending the execution of the trust, the necessary repairs to buildings and fixtures, the insurance, and also the assessments and taxes, after the payment of which the income of suqh estate was to be paid to the said Thomas S. Bleeker, during his natural life; upon the death of the said Thomas S. Bleeker, the said trustee, or his successors, to convey all the property then remaining in his hands to such person or persons as should be designated by the said Thomas S. Bleeker in his last will and testament, and, in ■default of any such designation, then to convey the same to the heirs at law and next of kin of the said Thomas S. Bleeker, in the ■same manner as if the said Thomas S. Bleeker had died intestate, seized of the property so conveyed in trust. It was further provided in the said trust deed as follows:

“And the said party of the second part is also hereby authorized and empowered at any time to grant, sell, assign, and transfer the said real and personal estate so held by him in trust, or any part thereof, at either public or private sale, and on such terms, conditions, and credits as he may deem expedient, and to execute all necessary deeds, conveyances, assignments, and transfer’s to perfect any such sale or sales, and to apply the proceeds of such sales and the capital of the personal estate which may at any time be in his hands to the payment of the debts which he is hereinbefore authorized to pay, and to reinvest the surplus proceeds arising from any such sale or sales, and the capital of any part of the said personal estate which may at any time be in his hands, in the purchase of good, productive real estate situate in the state of New York, or in good bonds and mortgages on unincumbered, productive real estate in this state, or in such other safe and permanent securities as he may consider proper.”

The plaintiff herein subsequently became the trustee and successor of the said Otis Allen, under such trust deed. On the 14th day of February, 1895, the plaintiff entered into a written contract with the defendants for the sale to them of a certain house and lot situate in the city of Albany, which house and lot had been acquired by one of the predecessors of said plaintiff as trustee under said trust deed, the same being purchased as a reinvestment of the surplus proceeds arising from a sale or sales of property belonging to the trustee estate. The defendants agreed to purchase such property, and pay therefor the sum of $3,200, on or about the 21st day of February, 1895. Subsequent to the execution of such contract, the defendants refused the performance thereof of their part, upon the ground that the plaintiff had no power or authority to sell such property, and could not give a legal title thereto, and thereupon the plaintiff brought this action for a specific performance by the defendants of their contract to purchase the property in question. The facts are undisputed, and are substantially as herein stated.

The court will not decree a specific performance upon the part of -the vendee of a contract to purchase real estate where there is doubt of the ability of the vendor to convey a good, marketable title to the property in question. Every purchaser of real estate is entitled to a marketable title, free from incumbrances and defects, and he will not be compelled to take property the possession of which he may be compelled to defend by litigation. The title should be such that, if he wishes to sell, he may be reasonably sure that no flaw or doubt will arise to disturb its market value. Shriver v. Shriver, 86 N. Y. 575; Vought v. Williams, 120 Id. 253; 30 St. Rep. 899; Irving v. Campbell, 121 N. Y. 353 ; 31 St. Rep. 307. In this case the power of sale is expressly granted to the trustee but it is in terms confined to the property conveyed to the trustee. It is granted for a double purpose, — paying debts, and making investments; and that power seems to have been exercised already, it appearing in the plaintiff’s complaint that the property in question here was procured by an investment of the proceeds of a sale or sales of the trust property. There is no express authority for a sale of any after-acquired property. The court will imply those powers which are necessary to carry out the purposes of the trust, no .more. There are no purposes of the trust alleged in the plaintiff's complaint, nor can I see any in reading the trust deed, which render it necessary to sell the property in question here ; neither do I think that the power to sell the property in question can be inferred from the power of the sale expressly given in the trust deed. It'will be observed that the trustee is directed, after paying the debts, to reinvest the surplus proceeds arising from any sale or sales in the purchase of good, productive real estate, or in bonds and mortgages, “ or in such other safe and permanent securities as he may consider proper.” It seems to me that, instead of inferring from this the right to sell property in which the proceeds of such sales had been invested, these words are rather a restriction upon the continued power to sell, of the trustee, and that the grantor comtemplated permanent in vestments, to continue during the life of the trust estate. The question, at least, is a serious one, not free from doubt, and one which cannot but affect the market value of the property in question, and the title offered to the defendants is therefore not one that a court of equity should compel them to accept.

The complaint should therefore be dismissed, with costs. ,


author: Per Curiam.

text:
    John S. Lyle et al., App’lts, v. Joseph J. Little et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed January 18, 1895.)

    Injunction—Wall.
    The owner of a lot will not be enjoined from removing so much of a wall as, though its foundation stands Wholly upon the adjoining lot, bulges or extends beyond the division line.
    Appeal from an order granting a preliminary injunction.
    Action by John S. Lyle and another against Joseph J. Little and others to enjoin defendants from removing parts of the northerly wall of plaintiff’s building. A preliminary injunction was granted, and, on a motion to vacate the same, the following order was entered: “It is ordered that the said injunction hereinbefore granted be, and the same is hereby, vacated and annulled; and it is further ordered that the defendants, and each of them, and their and his servants, agents, and employes, be, and they hereby are, restrained and enjoined during the pendency of this action, or until the further order of the court, from in any manner interfering with, removing, or cutting away any part or portion of the wall on the northerly side of the building known as ‘Number 471 Broadway and 44 Mercer street,’ in the city of New York, saving and excepting to much of said wall as extends, overhangs, bulges,, or protrudes to the northward of the line between the premises on which said building stands and the premises adjoining on the north or to the northward of points vertically over said line. And this injunction shall not in any way be taken as restraining or enjoining the defendants, or either of them, or any one on their behalf, from cutting away or removing such part or parts of said wall, if any, as so extend, overhang, bulge, or protrude to the northward -of said line or of points vertically above it.” From the portion ■of said order which reads as follows: “Saving and excepting so much of said wall as extends, overhangs, bulges, or protrudes to the northward of the line between the premises on which said building stands- and the premises adjoining on the north, or to the northward of points vertically over said line;” and the portion which reads: “And this injunction will not in any way be taken as restraining or enjoining the defendants, or any one on their behalf, from cutting away or removing such part or parts of said wall as so extend, overhang, bulge, or protrude to the northward of said line or of points vertically above it.”

      J Kling, for app’lts; A. B. Thacher, for resp’ts.
   Per Curiam.

Order affirmed, with $10 costs and disbursements, on opinion of special term.

The opinion of Mr. Justice Patterson at special term is as follows:

It is stated in the complaint in this action that the wall, interference with which on the part of the defendants is enjoined by the temporary injunction stands altogether upon the plaintiffs’ land; and, if such is the fact, the injunction must be continued. The question of title to the two inches of ground, which it is said the defendants intend to occupy by their wall, cannot be determined in this action. The answering affidavits state, however, that the defendants have no intention of building beyond their line; but, to prevent any further misunderstanding and dispute witn reference to that subject, the in j unction will be continued, to prevent any interferences with the plaintiffs’ wall as it now stands except as hereinafter stated.

It is claimed on the part of the defendants that there is an encroachment of the plaintiffs’ wall, caused by its bulging or overhanging at various points about the foundation, over the land of the defendants, and that such bulging prevents the erection of a wall on their land, which shall be perpendicular from the foundation to the top of the building. This condition of the wall seems to be established. The plaintiffs have no right by prescription or otherwise to maintain the overhanging wall, so as to prevent the defendants erecting their building with a true perpendicular side wall, or to compel a change in their plans to accord with the defect in the plaintiffs’ wall. To whatever cause this encroachment may be attributable, its existence cannot interfere with the defendants’ rights, and there is no sound reason suggested why they should be obstructed in the occupation of space for their building which justly belongs to them. If, by cutting in the wall as the defendants propose to do, the plaintiffs’ building may be rendered insecure, it is for them to see that it is made safe; and the answering affidavits show that the defendants have not only expressed a willingness, but that they are ready, to co-operate with the plaintiffs in any reasonable method of rendering the plaintiffs’ building safe, and for that purpose the plaintiffs would be permitted to enter upon the defendants’ land. It is somewhat indefinite from the papers at what part of the wall and to what extent this overhanging exists,—a matter which should be determined by an accurate survey of the wall, so that a proper provision may be made as to the parts of the wall in respect to which the injunction is not to apply. It would seem appropriate that such a survey should be procured from an officer of the department of buildings of the city of New Yorlt.

The injunction will be modified in the manner suggested, and the order may be settled on two days’ notice.


author: Newburger, J.

text:
    Abram French Company, App’lt, v. Harris Shapiro, Resp’t.

      (New York City Court, General Term,

      Filed March 19, 1895.)

    Pleading—Answer—Supplemental.
    An application for leave to file a supplemental answer alleging that the plaintiff, a foreign corporation had failed to file the certificate required by law, will he denied on the ground of loches, where it was not made until thirteen months after joinder of issue, though the complaint had alleged that plaintiff was a foreign corporation. >
    Appeal from an order, granting leave to file a supplemental answer.

      Hayes & Greenbaum, for app’lt; Albert L. Phillips, for resp’t,
   Newburger, J.

This is an appeal from an order granting leave to the defendant to serve a supplemental answer to the complaint. The action was commenced in November, 1893, and issue was joined on or about the 18th day of December, 1893. The case was duly noticed for trial, and appeared on the day calendar a number of times. On the 18th day of January, 1895,-13 months after issue was joined,—the defendant moved for leave to serve a supplemental answer to the complaint; setting up as an additional defense that the plaintiff, being a foreign corporation, has failed to file a certificate authorizing it to do business in this state. The defendant’s moving papers showed that the certificate was filed after the action was commenced. The motion was, however, granted, and from the order entered thereon this appeal is taken.

The defendant was guilty of loches. It is claimed, however, by the defendant, in his affidavit, that at the time of joining issue he did not know that plaintiff had failed to file a certificate as required by chapter 687 of the Laws of 1892. The complaint alleges that the plaintiff was, and still is, a foreign corporation organized under the laws of the state of Massachusetts; and, if the defendant desired to take advantage of a failure on the part of the plaintiff to comply with any law of this state, it was his duty to inquire. He knew that the plaintiff was a foreign corporation, and he could have discovered in November, 1893, what he ascertained in January, 1895, by communicating with the secretary of state. It is claimed, however, by the learned counsel for the defendant, that he was misled by reason of several opinions found by him-upon questions similar to the one at bar. An examination of the authorities cited, Contracting Co. v. Del Genovese, 33 Supp. 10; Abram- French Co. v. Marx, 63 St. Rep. 407, fails to convince us'of any change in the law in reference to the filing of certificates ; and the two opinions cited are not opposed to each other,—one simply-holding that the failure on the part of a foreign corporation to file a certificate was good ground for a demurrer, and the other holding it could be raised by answer where it did not appear in the complaint. The defendant’s loches have not been properly explained. For these reasons the order appealed from must be reversed, with costs.

All concur.


author: Bischoff, J.

text:
    Cora D. Wyckoff et al., Resp’ts, v. Robert Frommer, App’lt.

      (New York Common Pleas, General Term,

      Filed April 1, 1895)
    1. Appeal—First instance.
    Where the tenant, in summary proceedings, consents to a trial and litigates the issues, he must be deemed to have waived the objection that the petition, on which the precept was issued, was not sufficiently definite in. respect to the time of letting.
    2. Landlord and tenant—Eviction.
    There can be no eviction without an abandonment of possession.
    3. Summary proceedings—Institution.
    Where the landlords are tenants in common and co-lessors, proof of the agent’s authority from one of them to demand payment of the rent and to institute the proceeding for non-payment, is sufficient.
    4. Evidence—Admissions.
    A party’s testimony in a former, is admissible against him upon the.trial of a subsequent proceeding as admissions against interest.
    Appeal from a final order in favor of plaintiffs.

      Joseph Martin, for app’lt; E. G. Duvall, for resp’ts.
   Bischoff, J.

This was a summary proceeding to recover the possession of demised premises for non-payment of rent. The precept was issued out of and made returnable to the Seventh district court, within whose jurisdiction the premises were situated, and the proceeding was, upon the service and return of the precept, with the written consent of the parties, transferred from said court to the Tenth district court for trial. Thereupon the trial was had in the Tenth district court, and the proceeding was determined by a final order, made by the justice thereof, and sitting in the last-mentioned court, awarding possession of the premises to the landlords. From the final order the tenant has appealed, and the return upon this appeal is from the Tenth district court.

The order appealed from is not void for want of jurisdiction of the justice who made it. Observing that there is no provision for retransfer of the proceeding to the court out of which the precept was issued, it is beyond dispute that it is not only the province, but the duty, of the justice sitting in the court to which the proceeding has been transferred for trial, to make the final order, if the facts determined by the justice entitle the person seeking possession to such an order, and of the last-mentioned court to enforce it. Section 1357 of the consolidation act (chapter 410, Laws 1882 ; see Code Civ. Prdc; § 2234) provides that summary proceedings to recover the possession of land must be had in the district court of the district within which the premises, or a portion thereof, are situated; section 1358 (Code Civ. Proc. § 2239), that all subsequent proceedings must be had in the court out of which the precept was issued, and to which it must be returnable, except as provided in section 1360; and section 1360 (Code Civ. Proc. § 2246), that the clerk of, or the justice sitting in, the court to which the precept was returnable, may, upon the consent of the parties, transfer the cause for trial to a district court of an adjoining district, which last-mentioned court shall possess the same jurisdiction and power, at its own courthouse, as if the premises were situated within its district. Having consented to trial in the court below, and litigated the issues, the appellant must be deemed to have waived the objection that the petition upon which the precept was-issued was not sufficiently definite in respect to the time of the letting. Sims v. Humphrey, 4 Denio, 185; Nemetty v. Naylor, 100 N. Y. 562. The letting to the appellant appeared from the uncontradicted testimony of Duvall, a witness for the landlords. Duvall testified that in a proceeding by the same landlords to recover possession for the alleged expiration of the term, instituted in the Seventh district court, and in which the landlords were defeated, the appellant denied, that the premises were demised to him for one month only, and testified that the letting was for a longer period at the monthly rental of $125, payable in advance. The appellant’s testimony in the former proceeding was admissible upon the trial of this as admissions against interest, and so not objectionable as hearsay. It was competent also to prove the admissions by the testimony of one who was present- and heard them made. The defense of eviction was not sustained. There can be no eviction without an abandonment of possession. Boreel v. Lawton, 90 N. Y. 293. It was contended on the appellant’s behalf that because of the execution- and delivery of a lease by the landlords or their agent to the appellant’s under-tenant, during the existence of the lease to the appellant, the latter was evicted, the later lease being inconsistent with the continuance of the first. Upon the landlords’ defeat, however, in the former proceeding to recover possession, the lease to the appellant’s under-tenant was at once canceled, and from the unchallenged evidence upon"the trial of this proceeding it appeared that the appellant, continued in the uninterrupted possession of the demised premises, and of the rents and profits thereof, and that he was in such possession at the time of the trial. The landlords being tenants in common, and colessors of the appellant, either or both were entitled to possession and the payment of the rent. Hence proof of the agent’s authority from one of the landlords and lessors to demand payment of the rent, and to institute this proceeding for nonpayment, was sufficient. The order should be affirmed, with costs.


text:
    Robert Frommer, App'lt, v. Franz Roessler, Resp’t.

      (New York Common Pleas, General Term,

      Filed April 1, 1895.)

    Landlord and tenant—Rent—Eviction.
    The defendant’s eviction from the premises as under-tenant of the plaintiff, who has been dispossessed, is an availing defense to the latter’s action for rent accruing after the date of eviction.
    Appeal from a judgment in favor of defendant, rendered by the justice without a jury.

      Joseph Martin, for app’lt; E. G. Duvall, for resp’t.
   Per Curiam.

The defendant’s eviction from the premises as undertenant of the plaintiff, the dispossessed tenant, was an availing defense to the latter’s action for rent accruing after the date of the eviction. Ash v. Purnell, 82 St. Rep. 306. That the ground stated for the objection to the admission in evidence of the record in the dispossess proceeding of Wyckoff v. Frommer was not well founded appears from the opinion handed down herewith in affirmance of the final order therein 66 St. Rep. 511, but, apart from this, the record, even if apparently irregular, was admissible to prove the fact of the eviction ; and so also of the warrant for dispossession. The evidence of defendant’s witness Duval as to the testimony given by plaintiff upon a former trial that the latter’s agreement with the landlords of the premises called for the payment of rent for a stated term at the rate of $125 a month was properly received as proof of admissions against interest, see Wyckoff v. Frommer, and had direct relevancy to the issues raised by defendant’s counterclaim upon the landlords’ demand for this rent theretofore assigned to the defendant. The judgment is found to be in accord with the justice of the case, and, as above shown, the points raised by the appellant present no ground for its reversal. Judgment affirmed, with costs.


author: Daly, C. J.

text:
    Clarita Dovale, App’lt, v. Bernard L. Ackerman, Resp’t.

      (New York Common Pleas, Trial Term,

      Filed February, 1895.)

    Contract—Consideration.
    A promise, made in consideration of the release by the promisee of a claim, though unenforceable, against the promisor, is valid.
    Motion for a new trial on the minutes.

      Edward W. S. Johnston, for the motion ; Coudert Bros., opposed.
   Daly, C. J.

The action was brought upon an alleged agree ment of the defendant, made in 1884, that if the plaintiff would release him from liability as a partner of his sons, to whom she had lent a sum of money, he would repay the loan in monthly installments of $100. The defendant made monthly payments to her for a period of over two years, and then discontinued them, and this action was brought for the balance of the loan. The defense was that the agreement by defendant to repay the "loan made to his sons was voluntary and without consideration, and was conditional, i. e. that the payments were to be made as long as his business afforded an adequate profit to do so. The "issue thus raised was submitted to the jury. They were told that the plaintiff’s testimony indicated an agreement founded upon the-consideration of her relinquishing her claim on him as a partner of his sons, and that she claimed that the evidence of his connection with this firm of B. L. Ackerman Sons indicated that he had an interest in it, as supporting the consideration for the promise ;■ that, on the defendant’s part, he claimed that certain admissions in writing made by her, to the effect that his payments were voluntary and that she had no claim against him, were corroborative-evidence that his version of the agreement was correct, and that there was no claim against him and that he was making the payments as a matter of favor; and that, from a certain affidavit made by her in 1889, it appears that she could not have made a claim against him in 1884, based upon a contention that he was liable-for any debts of Ackerman Sons.

It thus appears that the case was submitted to the jury upon the question whether the plaintiff made a claim against defendant, and whether, in consideration of her relinquishing that claim, he promised to pay the installments in question, or whether no such claim was made, and the promise of defendant was voluntary, as well as conditioned upon what his business would afford. At the conclusion of the charge the 'counsel for defendant asked the court to charge that, “if the jury find that there was ño original liability by Bernard L. Ackerman to Mrs. Dovale, there was no consideration for his promise to make the payments tó Mrs. Dovale.” This request was acceded to, and the jury retired, subsequently returning with a verdict for the defendant. The effect of the charge as requested is undoubted. No one can say that it did not control the verdict, for under it the jury were bound to find that the defendant, was originally liable as a partner, before he could be made liable upon the agreement set up by the plaintiff, even though the jury should find that it was unconditional, and in the very terms as claimed by her. That the instruction was erroneous, there can. be no doubt. This very agreement was considered by the supreme court. Dovale v. Ackermann, 39 St. Rep. 517, and the general term concurred in the view that the promise of the defendant was-not gratuitous, if he was not a member of his sons’ firm, and that “ a consideration for the agreement to pay one hundred dollars a month may be found in Mrs. Dovale’s abandonment of her claim against Mr. Ackerman, Sr., in his capacity of partner, as evidenced by her letter of September 3, 1885.” In the letter referred to by the court, which was signed and delivered to defendant at his request, the plaintiff, while acknowledging that defendant i» “ wholly responsible as to said debt," and that whatever he did and had done so far was simply in consideration of his friendship to her late husband and his family, concludes as follows:

“ I will further add that I agree to receive such payment as stated, and will at no time demand the payment of the whole amount due, in full, so long as the monthly payments are regularly made and met; and, should I unfortunately be compelled to do so, it would only be against the firm of Ackerman Bros., as I have no claim whatever against yourself.”

The view taken by the general term of the supreme court, as above expressed, is supported by conclusive authority :

“ It is not necessary, to uphold a promise based upon the surrender or composition and compromise of a claim, that it was a valid claim,—one that could be enforced at law.” White v. Hoyt, 73 N. Y. 505-514. “The real consideration which each party receives under a compromise being, not the sacrifice of the right, but the settlement of the dispute and the abandonment of the claim, it is no objection to the validity of the transaction that the right was really in one of the parties only, an.d that the other had no right whatever. The fact that one may have had no claim is immaterial, if he was honestly mistaken as to his claim. It is enough if, at the time of the compromise, he may have believed he liad a claim, and that the parties have, by the transaction, avoided the necessity of going to law.” 1 Chit. Cont. (11th Am. Ed.) 46, and notes. “ The law favors such settlements of controversies, and finds a consideration for the contract looking to the compromise in the mutual agreement of the parties to abide the result of the settlement.” 3 Am. & Eng. Enc. Law, 838. “ The prevention of litigation is not only a sufficient, but a highly-favored consideration; and no investigation into the character or value of the different claims submitted will be entered into for the purpose of setting aside a compromise, it being sufficient if the parties entering into the promise thought at the time that there was a question between them.” 1 Pars. Cont. 364. “The fact that the promisor had a legal defense to the claim settled is no defense to an action on the new promise.” Wahl v. Barnum, 116 N. Y. 87 ; 26 St. Rep. 457; Zoebisch v. Von Minden, 120 N. Y. 406; 31 St. Rep. 499.

Applying the above principles, it is clear that the' plaintiff’s right of recovery upon the agreement should not have beeu made to depend upon the finding by the jury that there was an original liability by agreement to her. It was enough if they thought at that time that there was a question between them, or even if she believed she had a claim, although she was honestly mistaken in that belief. The promise to forbear prosecuting a claim against the defendant as a copartner in his sons’ firm, if he apprehended that she might make such a claim, was a good consideration for his promise. It may have been of the highest value and importance to him that no such question should be raised and no such liability claimed, and his promise, based upon the relinquishment of such a claim at the time, constituted a benefit which upholds the promise.

The motion for a new trial is opposed upon the ground that no exception was taken by the plaintiff to the erroneous instruction. There is a dispute upon this point, but it is not material. An exception is not indispensable to a review by the court of errors committed at the trial, whether in the admission or exclusion of evidence, Maier v. Homan, 4 Daly, 168; Wehle v. Haviland, 42 How. Pr. 399-409, or in the judge’s charge, Lattimer v. Hill, 8 Hun, 171; Benedict v. Johnson, 2 Lans. 94; Costello v. Railway Co., 65 Barb. 92, 105 ; Johnson v. McConnel, 15 Hun, 293 ; Pettis v. Pier, 4 Thomp. & C. 690; Wehle v. Haviland, supra; De Yavalette v. Wendt, 11 Hun, 432. The verdict in this case was contrary to law, and the motion for a new trial upon the minutes was properly made upon that ground. Code, section 999. Upon such a motion the whole case is before the court, upon the law as well as the facts. Tate v, McCormick, 23 Hun, 218; Wehle v. Haviland, szipra The motion for a new trial must be granted, with costs to abide the event.

Motion granted, with costs to abide the event.


author: Giegerich, J.

text:
    Augusta E. George, Resp’t, v. William Trevellyn, App’lt.

      (New York Common Pleas, General Term,

      Filed April 1, 1895.)

    Summary proceedings—Direction op verdict.
    Where a jury trial is demanded and had in a summary proceeding, brought in a district court in the city of New York, the justice has no power to direct a verdict.
    Appeal from a final order in favor of plaintiff, entered on a verdict directed by the court.

      August P. Wagener, for app’lt.
   Giegerich, J.

This is an appeal by the tenant from a final order made in summary proceedings to recover the possession of certain real property situate in the city of New York, after a default in the payment of rent. On the return day of the precept the tenant appeared and filed a verified answer, whereby he, in substance, denied each allegation of the petition, except that he was in possession of the demised premises upon the same terms as alleged in the petition, and, for a further and separate defense, pleaded eviction. A jury trial having been demanded when issue was joined, the proceeding was adjourned. On the day fixed for the trial the parties appeared in the court below, the jury was empaneled and sworn, and the trial thereupon proceeded. At the close of the testimony, and at the request of counsel for the landlord, the justice directed a verdict, to which counsel for the tenant duly excepted. A final order was thereupon made awarding to the landlord the delivery of the possession of the property, from which the tenant has appealed.

On the argument of the appeal the tenant only appeared by counsel, the landlord not appearing. The precise point presented by this appeal was determined by this court in Horn v. Prior, 22 St. Rep. 237, in which it was held, pursuant to the ruling establishment by the case of Blumburg v. Briggs, 10 St. Rep. 242, that where a jury trial is demanded and had in a summary proceeding brought in a district court in the city of New York to recover the possession of real property, the justice has no power to direct a verdict. It therefore follows that the final order appealed from must be reversed, and a new trial ordered, with costs to abide the event.


text:
    Grace Sherwood, Resp’t, v. William H. Crane, App’lt.

      (New York Common Pleas, General Term,

      Filed April 1, 1895.)

    Contract—Construction.
    Where the language of the promisor may be understood in more senses than one, it is to be interpreted in the sense in which he had reason to suppose it was understood by the promisee.
    Appeal from a judgment of the city court, affirming a judgment entered on a verdict in favor of plaintiff, and from an order denying a new trial.

      Rose & Putzel, for app’lt; Howe & Hummel, for resp’t.
   Daly, C. J.

The plaintiff claims damages for breach of contract of employment by the defendant, a theatrical manager, under which she was to perform at the Star Theatre in a play called “Brother Jonathan,” the performances of which were to commence in the latter part of February, 1898, and to run until about June 1st, at a salary of $60 per week. The defense is that she was not employed for any particular period, but only for the run of the play, which lasted but six weeks, and that her employment was conditional upon her rehearsal of the part to the satisfaction of the author of the play and of the defendant. She was notified in February, during the rehearsals, that her services were not needed; and she remained out of employment thereafter for the whole term, except one week, in which she earned $50. , The case was submitted to the jury, who found for the plaintiff in $910, being the' whole amount claimed by her, after deducting the $50 earned by her.

Defendant concedes that there was a question of fact for the jury, upon the evidence, as to the terms of the contract, but claims error in the charge of the court as to what would constitute a contract for a definite period, as distinguished from an engagement for the run of the play. The court said : “I charge that if the jury believe the testimony of Miss Sherwood, namely, that Brooks told her that Crane, the defendant, made no mistakes, and that the play would run until June 1st, that was the contract, and she is not limited to six weeks, but is entitled to recover for the full period.” To this the defendant excepted. The defendant contends that the evidence shows that the plaintiff was engaged only for the run of the play, and that the statement by Brooks, the defendant’s agent, wbo engaged her, that the play would run to June 1st, was mere opinion and not a warranty that it would so continue. The testimony of plaintiff, on her direct examination, was : That Brooks said : “This means a permanent thing for you in Uew York from the opening until the balance of the season. I will give you $60 a week from the time we open until the balance of the season.” That she said, “Suppose the play is a failure?” He said, “Crane does not produce failures.” She said, “How long is the season?” He said, “We will open in three or four weeks, at the very latest, from January 30th, and it will extend to about June 1st” On cross-examination she was asked: “Q. I call your attention particularly to the conversation you had with Brooks the first time you met him, and I ask you the question whether or not it was not a fact that Brooks said to you, you were engaged for the run of the play? A. Yes. Q. That is it? A. Yes ; and I asked him how long the run would be, and he told me about three weeks from January 30th, until about June 1st. Q. And that, he told you. would be the run of the play? A. Yes.” And again : “A. My first conversation with him, I was engaged from the time I say until on or about June 1st. Q. For the run of the play? A. Yes; that is, for the length of the run of the play. Q. And be told you, in his opinion, it would run to June 1st, about? A. Yes.” From this testimoney, if the jury believed it, there was no doubt that Brooks not only expressed an opinion that the play would run until June 1st, but had so much confidence in Mr. Crane’s judgment of plays, and ability to run them as long as he pleased, that he was willing to and did contract with plaintiff that her engagement in this piece would last to that date. So that, while he engaged the plaintiff for the run of the play, he distinctly specified that run as extending to June 1st, and there was no error in the instruction of the court on that point. But, if there were a doubt as to the sense in which Brooks’ statement as to the run of the piece and plaintiff’s engagement are to be understood, defendant is not entitled to the benefit of that doubt; for it is manifest that from Brooks’ decl oration to plaintiff that “this means a permanent thing for you in New York from the opening until the'balance of the season,” and “I will give you $60 a week from the time we open until the balance of the season,” together with his other statements, he must have supposed that the plaintiff understood he was contracting for the season, and this understanding constitutes the contract. “Where the language of a promisor may be understood in more senses than one, it is to be interpreted in the sense in which he had reason to suppose it was understood by the promisee.” Hoffman v. Insurance Co., 32 N. Y. 405, citing Potter v. Insurance Co., 5 Hill, 149 ; Barlow v. Scott, 24 N. Y. 40. It is to be observed that defendant did not ask that any question with regard to plaintiff’s understanding, or what defendant supposed or had reason to suppose that understanding to be, should be submitted to the jury, but contented himself with an exception to the instruction quoted. The j udgment should be affirmed, with costs.

All concur.


author: Pryor, J.

text:
    Helen K. Cree, Resp’t, v. John I. D. Bristol, App’lt.

      (New York Common Pleas, General Term,

      Filed April 1, 1895.)

    Contracts—Interpretations.
    An express provision in a contract for forfeiture of rights under it precludes an implication of other causes of forfeiture.

      Appeal from, a judgment entered on a verdict in favor of ■plaintiff, and from an order denying a motion for a new trial.

      Henry A. Powell, for app’lt; Louis S. Phillips, for resp’t.
   Pryor, J.

The plaintiff, as assignee, sues for commission on renewal premiums ; and whether she be entitled to recover depends upon the construction of the contract on which she founds her action. The defense is that by an express provision of the contract plaintiffs assignor was to be paid his commission “ while he retained his agency, and no longer," and that his right was lost by a termination of the agency. But this term of the contract is a general regulation of the relations of the parties, and is subject to qualification by its special provisions, namely: First, in case of the death of the defendant, or the discontinuance of his connection with 'the company, the plaintiff’s assignor should be entitled to the ■commission for two years; secondly, in case of the death of the plaintiff’s assignor his representative or widow was to be paid the commission for two years; and, thirdly, in the event the plaintiff’s .assignor should cease “ active and reasonable effort for new business for the company, he should receive the commission for two years.” The decision turns upon the distinction between a total termination of the agency and a languid and inefficient execution of a continuing agency. The plaintiff’s assignor became “ a free lance,” and so ceased to be the exclusive agent of the company; but this with the consent of defendant, and upon the express understanding that his renewal commission was not to be forfeited. The defendant contends, however, that in any event the agency was ended by his discharge of the plaintiff’s assignor. But the contract makes specific provision for the forfeiture of the commission by dismissal, namely, when the plaintiff’s assignor “ shall neglect or fail to pay over any moneys or property, then and from thenceforth the agency hereby created shall at once cease and determine, and thereafter be at an end; and said agent shall not thereafter be entitled to any commissions or compensation for any renewal premiums.” It is not pretended that the discharge of plaintiff’s assignor was for the cause here distinguished, and the rule of expressio unius would prevent a forfeiture of his right for any other default.

It is argued that the general provision that the. plaintiff’s assignor should receive the commission only while agent suffices to defeat the action. But the language is, “ while he retains the agency,” plainly discriminating between a voluntary renunciation -of his rights and a compulsory forfeiture of them by the act of the defendant. " Whether, within the sense of the contract, the agency of the plaintiff's assignor had been determined, was a question for solution upon conflicting evidence; and that issue, submitted in a charge acceptable to the defendant, the jury have decided against him. We see no reason to disturb the verdict. Judgment and order affirmed, with costs.

All concur.


text:
    Harriet E. Burke, Resp’t, v. Terry J. Tindale, App’lt.

      (New York Common Pleas, General Term,

      Filed April 1, 1895.)

    1. Landlord and tenant—Covenant of quiet enjoyment.
    A covenant, in a lease, for quiet enjoyment is not broken by the removal from the leased building, by the department of public works, of a show window constructed by the lessee under a provision in the lease, where such provision was inserted after the covenant of quiet enjoyment.
    8. Same.—Unlawful structure.
    A provision at the end of the lease, permitting the lessee to erect an unlawful structure, does not defeat the lessor's right to rent.
    Appeal from a judgment entered on a Verdict in favor of plaintiff, directed by the court.

      Stephen C. Baldwin, for app’lt; Tallmadge W. Foster, for resp’t.
   Daly, C. J.

The action was for rent, and the defense was eviction under title paramount. The eviction complained of was the removal, by the department of public works of the city of New York, of a show window which encroached upon the public street, and which was erected by the tenant under the following clause of his lease:

“ And it is further agreed that the party of the second part has the right to erect a show window similar to the one now being put in 157 Broadway, and, upon presentation of the receipted bills for the same, the party of the first part agrees to allow and pay the sum of three hundred ($300) of the first two months’ rent. The said window, when completed, to belong to the property.”

The demised premises are described in the lease as “ the south store in the building known by the street numbers 155-157 Broadway,” and the covenant of quiet enjoyment was that the tenant should peaceably and quietly hold and enjoy all said demised premises. The clause giving the lessee the right to erect a show window is inserted, at the end of the lease, after all the other provisions, and after the covenant for quiet enjoyment. If thus appears that the show window was no part of the demised premises, not being included in the description, and is not covered by the covenant for quiet enjoyment, not being referred toby the terms of the covenant; and the removal of the window was not, therefore an eviction from the demised premises, nor a breach of the covenant. The window was not an appurtenance of the demised premises, as it was not in existence at the time of the lease, but was subsequently to be constructed and added by the tenant. Nor does the provision that the window, when erected, should belong to the property, make it a part of the premises as demised. This provision was for the benefit of the lessor, and not of the lessee, and to prevent the latter removing the structure at the expiration of the term. The window was not removed by the lessor, but by the city authorities. If the lessor had removed it, he would be liable, if at all, for damages for breach of his agreement permitting the lessee to construct it; but he would not be liable for eviction. As it was an incumbrance upon the public street, he might not be liable in any event for removing it under orders from the proper authorities. As it was not removed by him, he is not liable to the lessee, because he has not covenanted to maintain the structure, nor in any way assured to the lessee the right to maintain it. The contingency of the exercise by the city authorities of the power to-remove it must have been contemplated by both parties, and has-not been guarded against by any provision of the lease.-

It is urged that the lessor, by an independent paroi agreement agreed to maintain the window, and that the court erroneously excluded evidence thereof. The defense was not pleaded-. The answer set up that the lease was taken upon the agreement that the show window to be erected should form "part of the demised premises, and that, pursuant to said understanding, and upon defendant’s request and express insistence, the provision in question was inserted in the lease.' This sets up no defense. The lease contains the provision as defendant would have it, and is not broad enough to give him the relief which he now seeks, namely, the right to abandon the premises in case of the removal by the municipal authorities of the bay window.

The contention that the structure permitted by the clause in question was unlawful, and that neither party can enforce the-covenants of the lease, is untenable. The rent sued for is not reserved for the use of the show window, but for the demised premises, of which it forms no part. The lessor is not seeking to enforce any provision respecting the show window. The lessee is claiming under it as matter of defense to the rent; not because it is unlawful, but because it was a lawful contract, and under it he had a right to abandon the premises. But, as we have seen, neither the written lease nor the agreement set up in the answer gives him any such right.

Judgment affirmed, with costs.

All concur.


text:
    Mart C. Bernard, App’lt, v. United Life Insurance Association, Resp’t.

      (New York Common Pleas, General Term,

      Filed April 1, 1895.)

    1. Insurance—Agent of insurer or insured.
    Although in the application for insurance the applicant stipulate that the person taking the application shall be his agent, still, if such person be in fact the agent of the company in taking the application, the stipulation is ineffectual to make him agent of the applicant.
    3. Same—Conditions—Estoppel.
    To an interrogatory in an application for insurance the applicant returned a true answer, but the agent taking the application knowingly and intentionally, without the privity of the applicant, substituted and inserted a false answer. Held, that the defendant is estopped from alleging the-false answer as a defense to an action upon the policy issued on the’application.
    Appeal from a judgment of the city court affirming a judgment entered on a dismissal of the complaint.

      Lyman W. Redington, for app’lt; Harry Wilber, for resp’t.
   Pryor, J.

The complaint was dismissed apon a misapprehension of the case. The learned trial judge conceived plaintiff’s contention to be that the condition in the application had been waived by the defendant; and he ruled, correctly enough, that such waiver was ineffectual, because not by an authorized agent, nor in writing, signed by the president or vice president and secretary or' assistant secretary of the company, in conformity with the terms of the policy. The decision at general term proceeded on the •same theory of inoperative waiver. The claim of the plaintiff, however, as disclosed by the evidence, is an estoppel.

In brief, the case is this: A daughter, for whom the defendant Insured the life of her mother, sues upon the policy; and she is confronted with the fact that an answer in the application is false. In avoidance of the defense, her reply, and it is not contradicted, is that she stated the truth to the agent of the company ; that he knowingly and intentionally substituted, a falsehood in the application; and that she did not learn of the perversion of her answer “until three months after mother’s death, when I went to collect It, and then they brought this against me.” Bui, rejoins the defendant, you have stipulated that “the person taking the application shall be your agent as to all statements and answers in the •application,” and therefore not we, but you, are responsible for his acts; and so the policy is forfeited by the falsehood in the application. The question is, was Donovan the agent of the defendant in taking the application ? He was the company’s agent to solicit insurance; he wrote out the application; he brought it to the plaintiff; he took and inserted her answers into it; he gave it to her to procure her mother’s signature to it; she returned it to him, and he “ turned it in to the company.” So far, beyond possibility of doubt or denial, Donovan was the agent of the defendant in taking the application. Insurance Co. v. Wilkinson, 13 Wall. 222, 232. Nevertheless, it is urged that, by virtue of the provision in the application, Donovan became plaintiff’s agent in the act of inserting her answers in the application, with the consequence that, although not she but the defendant employed him, and although in taking her answers he was serving the defendant, not her, still his fraud was her fraud, not the fraud of the defendant, and for such fraud she must suffer the forfeiture of her policy, and the defendant be allowed to retain the two years’ premiums paid upon it. . So absurd and iniquitous a result is shocking to the sense of justice; and we are to inquire whether it be any more ■consistent with the rules of law. In reason, no formula of words •can effectually alter the nature of things, and transmute the actual agent of one party to a negotiation into the agent of the other. Whited v. Insurance Co., 76 N. Y. 415, 420. If, then, Donovan was, in fact, the agent of-the defendant, the defendant has stipulated for security against its own fraud, which is contrary to fundamental principles. Hence, conformably with justice and common sense, it is adjudged .that, despite any agreement to the contrary, an agent of- the company, in taking an application for insurance, is still quoad hoc the agent of the company. Bushaw v. Accident Co., 28 St. Rep. 524. Notwithstanding, then, the confusion of characters so craftily contrived by the defendant to elude its righteous obligation, Donovan continued its agent; his acts were its acts, his fraud its fraud; and, as against the innocent plaintiff, the defendant is estopped to allege the false answer in the application in bar of the action. The plaintiff warranted the truth of the statements in her answers; and they would have been true but for the fraud of defendant’s agent. Now, one may not rely on a nonperformance of which he was himself the occasion. Miller v. Insurance Co., 107 N. Y. 292, 296; 12 St. Rep. 1; O'Brien v. Society, 117 N. Y. 310, 318; 27 St. Rep. 326; Bushaw v. Accident Co., 28 St. Rep. 524; Bentley v. Association, 23 St. Rep. 470, and cases cited. The only defense apparent in the evidence being unavailable to defendant, the court erred in the dismissal of the complaint Judgment reversed, and new trial ordered, costs to abide the event.

All concur.


text:
    Nathaniel Hofman, Resp’t, v. Alfred M. Seixas, App’lt.

      (New York Common Pleas, General Term,

      Filed April 1 1895.)

    1. Deposition—Discovery—Defects in application.
    Too great generality in an application for inspection of books is cured by particularizing the books in the order.
    2. Same—Demand for judgment.
    In an action at law a discovery is allowable in order to enable plaintiff to ascertain the amount for which he should demand judgment.
    Appeal from an order granting an inspection of books.

      Avery F. Cushman, for app’lt; George Hahn, for resp’t.
   Pryor, J.

Upon an agreement entitling him to a percentage on purchases by the defendant the plaintiff sues to recover the amount so due him; and as he “ has no means of knowing what purchases were made by the defendant, and so is unable to state the amount to which he is entitled,” the plaintiff, in order to an appropriate prayer for relief, moved for “ an inspection of all books, documents, and other papers relating to the merits of this action,” in the possession or under the control of the defendant. In compliance with the motion, the defendant was directed to deposit with his attorneys, and permit the plaintiff to inspect, “ his ledger and sales book, containing entries in reference" to the purchases by defendant. On appeal from such order the defendant impugns its validity on several grounds. First it is objected that “ the petition does not state facts sufficient to warrant the order,” because, since by subdivision 3, § 481, of the Code the demand for judgment may be for any sum “to which the plaintiff supposes himself entitled," it is not necessary that he name the exact amount of the recovery. In Veiller v. Oppenheim, 58 St. Rep. 190, Judge O’Brien, with the concurrence of Van Brunt, P. J., aud Follett, J., exploded a little criticism thus: “In an action at law it will be necessary for the plaintiff to state the amount which he seeks to recover, and, unless such amount can be ascertained from an inspection of the books, plaintiff will not be in a position to know just what sum he is entitled to sue for.” Again, defendant objects that it is not apparent that the plaintiff “ has exhausted all means of information at his command.” Nevertheless it is the fact that he explored without result the one source of intelligence open to him, and how futile would have been an application to the defendant is sufficiently evinced by the stubborn resistance to the present motion. Again, it is urged that the order is invalid, because “ neither the petition nor the notice of motion specifies the particular books or documents which the plaintiff desires to examine.” Bat the order designates the ledger and sales book, so that the exorbitant demand in the notice of motion is denied, the generality of the moving papers is reduced to a particular by the order, and nothing more is exacted of the defendant than would have been allowable had plaintiff’s papers "been technically precise. Still again, defendant objects that “ the petition is not verified in accordance with the rule of court,” but wherein it is defective the brief does not apprise us. Rule 15 merely requires that “the moving papers be verified by affidavit,” and plaintiff’s petition is authenticated by just such a verification. Finally, the defendant complains “that the application is not made in good faith, but is a pure and simple fishing excursion.” “Bad faith” and “fishing excursion” is the uniform answer to applications for discovery, and, were the answer sufficient, the relief would be unattainable. The petition to which defendant refers us for proof of his imputation suggests to us no suspcion of sinister motive in the application. If the adjudication in Veiller v. Oppenheim, supra, be not conclusive as authority upon this appeal, the opinions of Barrett and O’Brien, JJ., are convincing as argument. Order affirmed, with costs and disbursements.

All concur.


text:
    Frederick Hardegg, Resp’t, v. Willards, App’lt.

      (New York Common Pleas, General Term,

      Filed April 1, 1895.)

    1. Bailment—Consideration.
    A reciprocal benefit between bailor and bailee, from the deposit of the farmer’s picture in the latter’s gallery, is a sufficient consideration to raise a duty and support a promise of care in the custody of the picture.
    2. Master and servant—Negligence—Unauthorized acts.
    It is no answer to an action against a master for an injury by his servant, in performing an act for the benefit of the master, that the servant’s duties were in another department of the business, and he did the act without the express authority or direction of the master.
    Appeal from a judgment rendered in favor of plaintiff.

      Thomas C. Ennever, for app’lt; Charles W. Coleman, for resp’t.
   Pryor, J.

The judgment for the plaintiff must be taken as resolving all controverted questions of fact in his favor. Sutter v. Vanderver, 122 N. Y. 652, 654; 34 St. Rep. 211. Upon appeal from a district court, we will not, except in case of. clear injustice, review and readjust the weight of evidence. Patterson, etc., Co. v. Lichtenstein Bros. Co., 9 Misc. Rep. 126; 59 St. Rep. 700 ; Lynes v. Hickey, 4 Misc. Rep. 522 ; 54 St. Rep. 120. It is idle, then, to argue that the deposit of the picture with the defendant was upon a gratuitous bailment, for the evidence shows a reciprocal benefit to the parties, in a mutual advantage from the exhibition of the picture in the defendant’s gallery. Hay, more; in return for the privilege of such exhibition, the plaintiff promised to procure orders for the defendant, and to forego his commission. Being thus a bailee for reward, the law implies on the part of the defendant an undertaking of diligence; and, indeed, such was its express engagement. It is unnecessary, therefore, to follow counsel in their interesting discussson as to the responsibilities of a mere depository. In this case the bailment was of the class, bcatio operis faciendi, and the duty of the defendant was to observe ordinary care in the safe custody of the picture. The question then is, did the defendant discharge that duty? In other words, is the defendant chargeable with ordinary negligence? Clearly, such negligence may not be imputed to the defendant for merely putting the picture in a showcase. The plaintiff assented to its being so placed, and himself says it was a safe repository. The injury to the picture was by the act of a boy, in dusting it,—a duty incumbent on the master, and essential to the security of the picture. The boy was a servant of the defendant, but as his employment was in the manufacturing, and not in the exhibition, room of the defendant’s building, and as it was neither his duty nor direction to dust the picture, the defendant contends that it is not responsible for his act. The general rule is that liability attaches to a master only for such acts of the servant as are committed in the execution and within the scope of his employment. But, adds an author of high repute, a master “cannot limit his responsibility for any particular servant by employing him only with reference to a single branch of the business. If a servant, under such limited employment, nevertheless undertakes to serve his. master in any other matter connected with the general business, and the limitation is not known to the person with whom he deals, the master is responsible for the acts of such a servant, in such matters, as much as for those of any other servants engaged in the business.” 1 Shear. & R. Neg. § 146. Accordingly, where a laborer in the hardware department of a blacksmith’s shop, without the authority or direction of the master, undertook to shoe a horse,—another and different employment,—it was adjudged that the master was responsible for an injury to the horse from the want of care and skill of such officious intermeddler. Leviness v. Post, 6 Daly, 321. The picture was in the custody and care of the defendant. The injury was done by defendant’s servant It is not apparent that the defendant took any precaution to prevent the injury. Hence, defendant's liability is a necessary conclusion. At all events, coupling the improbability of the story that the boy undertook the labor of cleaning the picture without direction or authority with the interest of the witness (defendant’s manager) in the event of the litigation, the scope of the boy’s employment was a question for determination by the trial justice. Volkmer v. Railroad Co., 134 N. Y. 418 ; 47 St. Rep. 631; Nicholson v. Conner, 8 Daly, 212; Courtney v. Baker, 60 N. Y. 1.

Upon still another ground the judgment may be upheld. When plaintiff was hesitating, because of the delicacy and value of the picture, to place it with the defendant, his reluctance was persuaded by an express pledge of responsibility on the part of the defendant. And after the destruction of the picture he jvas again assured that “the firm is responsible, and you will get paid for it.” Happily for the interests of justice, the defendant’s escape from liability is no more consistent with law than with morals.

The exception to evidence of the value of the picture is untenable. In the absence of a market price, the proof was clearly competant. Judgment affirmed, with costs.

All concur.


text:
    Charles Kranichfelt, Resp’t, v John Slattery, App’lt.

      (New York Common Pleas, General Term,

      Filed April 1, 1895.)

    1. Evidence—Declarations.
    The certificate of a notary of the acknowledgment of an instrument cannot be rebutted by proof of his oral declarations, if he is living and his testimony can be had.
    2. Same.
    Proof that a witness has made similar statements at another time, is not admissible in corroboration of Ms testimony.
    3. Bond—Delivery.
    Possession of a bond by the obligee is prima facie evidence of delivery.
    Appeal from a judgment, entered on a verdict in favor of plaintiff, and an order denying a motion for a new trial.

      James P. Campbell, for app’lt; F. P. Trautmann, for resp’t.
   Daly, C. J.

The action was brought upon a bond alleged to .have been executed by the defendant, as surety for the performance by one Lynch of his contract with plaintiff to excavate the latter’s lot on Audubon avenue of rock and earth, and to remove from adjoining premises some of said rock and earth, which had been placed thereon by Lynch, and also to do the mason work for new buildings on the plaintiff’s lot. The defense was a denial of the execution of the bond sued upon, and the question tried before the jury was whether the signature to the bond was defendant’s signature, or was a forgery. The execution and. delivery of the bond were proved by its production by the plaintiff and a certificate of acknowledgment by a notary public, Charles W. Pinckney, of New York county, attached thereto, to the effect that on the 8th day of April, 1892, John Slattery, known to him to be the individual mentioned in and who executed the instrument, appeared before him, and duly acknowledged that he executed the same. The defendant called the notary as a witness, and showed by him that'he did not personally know the party making the acknowledgment in question, who was brought to his office by Lynch, and identified by the latter; and the defendant was sworn on his own behalf, and testified that he never signed nor acknowledged the bond. The defendant was then allowed, nnder plaintiff’s objection, to testify that some sixteen months subsequent to the date of the certificate he called upon the notary, in company with a Mr. Walker, and that the notary stated to them that he did not know the defendant, and had never seen him until that time, and that defendant had never appeared before him. Walker’s testimony to the same effect was also admitted, under plaintiff’s objection ; but, at the close of the examination of that witness, the-court, on motion of plaintiff, struck out the testimony of Walker and of the defendant in regard to their interview with the notary. The defendant excepted to the granting'of the motion.

The certificate of a notary of the acknowledgment of an instrument is not conclusive, and may be rebutted, and the effect thereof may be contested by a party affected thereby. Code, §§ 935-937. But the certificate cannot be rebutted by proof of oral declarations; of the notary, who is living, and whose testimony can be had ; such declarations not being made in the course of his official duty, but long after the certificate was executed, They are mere hearsay, and inadmissible. 1 Phil. Ev. 349, 350 (Cowen & H. notes); 1 Greenl. Ev. 123-126. His declarations would be admissible to impeach his testimony if he affirmed the truth of the certificate-when'testifying as a witness. In such case it would be proper, as affecting his credibility, to prove that he had made statements to the contrary. Id. 462. But the notary, who was called as a witness, did not affirm the truth of his certificate, but in fact denied it; testifying that he did not know the defendant, and took the acknowledgment of a stranger who was introduced to him by Lynch. The defendant, therefore, had direct, competent evidence from the notary, and in his own examination, fo rebut the certificate, and there was no necessity for introducing the notary’s declarations out of court. No confirmation of the latter’s testimony was needed, for it was not disputed; and, if it had been, proof that the witness had made similar statements at another time would not be admissible in' corroboration of his testimony, under any known rule of evidence. The case differs from that of a witness-charged with a fabrication of a story for the purposes of a trial, in which case previous declarations to the same purpose, made when there was no suspicion of influence or interest, may be shown. Baber v. Railroad Co., 9 Misc. Rep. 20; 59 St. Rep. 676. The evidence, therefore, was improperly admitted, and plaintiff, having-objected in time, was entitled to have it struck out.

Defendant, having thus offered incompetent evidence, cannot reasonably complain of the effect upon the jury of having it struck out; but there is no reasonable ground for the apprehension that the jury were misled by the elimination of the incompetent evidence into supposing that the certificate of the notary remained unimpeached. No intimation of such a ruling appears in the case, and defendant could have guarded against a wrong impression by asking for appropriate instructions. In the absence of the judge’s charge from the case, we are to assume that the issues were fairly submitted upon the evidence, and that the effect of the evidence was fairly and fully stated. Upon the whole case, there was evidence to sustain the verdict, and to satisfy the requirement of law imposing upon plaintiff the burden of proving the execution and delivery of the bond. Although the effect of the notary’s certificate had been destroyed by the notary’s evidence that he did not know the party making the acknowledgment, there was competent evidence of the execution of the bond. The bookkeeper of the Murray Hill Bank, where the defendant kept his account for years, who had thousands of his checks pass through his hands, was familiar with his signature, and therefore a competent witness, testified to his belief that the signature to the bond was the signature of the defendant. There were admittedly genuine signatures of defendant in evidence for the jury to compare with the bond, and, although an expert in handwriting called for defendant pointed out many differences between the disputed and the genuine signatures, some of the most important differences were discernible among the genuine.

The most important evidence, however, on plaintiff’s behalf, was elicited upon the cross-examination of defendant, who testified that he agreed to and did sign a bond or contract, as surety for Lynch, in regard to a contract “in relation to a portion of the Audubon matter with which Kranichfelt [the plaintiff] had to do,” and that this was about May, 1892 (the bond in suit was dated April 6, 1892, and this testimony was given in January, 1894); ■“but it was not exactly for Kranichfelt. It was for a man who -owned adjoining property. It was about getting rock off the adjoining property. There was something about getting rock off the adjoining property.” It thus appeared that defendant had signed some paper,—a bond or contract,—as surety for Lynch, with reference to one of the matters mentioned in the bond in suit; also, that he was quite friendly with Lynch, who was inspector of sewers, and was inspecting work which defendant was doing, and had more or less to do with that work,—facts which the jury might weigh in deciding what credit to give defendant’s testimony that the bond in suit was not the bond which he then signed, and that he was not the person introduced by Lynch to the notary, and who acknowledged the bond. The defendant also admitted the receipt from the plaintiff’s attorney, in June or July, 1892,—two or three months after he executed the paper which he admits,—of a written notification of the failure of Lynch to carry out and complete two contracts respecting Audubon avenue; and that the notice referred to him as surety; and that a bill of expenses, amounting to $770, was inclosed with the notice; and that he was required by it to carry out the contract of Lynch, or the plaintiff would look to him for any damage he might sustain. Defendant admitted that he paid no attention to this written notice. The plaintiff’s evidence was that it was personally served upon him, and that after reading it he said it was all right. Defendant denied this, and swore that he received the communication by mail. It was for the jury to find the fact, and whether an admission on defendant’s part was indicated by his words. The motion to dismiss the complaint was therefore properly denied. The other exceptions show no error. Objection to the admission of the bond in evidence, on the ground of want of proof of delivery, was untenable. Possession by the obligee was prima facie evidence of delivery. 2 Am. & Eng. Enc. Law, 459. The judgment and order must be affirmed, with costs.

All concur.


text:
    James Joseph Richards, Resp’t, v. George A. Hayes, App’lt.

      (New York Common Pleas, General Term,

      Filed April 1, 1895.)

    Appeal—Charge—Master and servant.
    Where, in an action by a servant for negligence of the master, the last instruction to the jury sums up the whole duty of the master as undertaking to insure the servant against all risk from the perils named, it is cr. roneous.
    Appeal from a judgment, entered on a verdict in favor of .plaintiff, and from an order denying a motion for a new trial.

      Alexander T. Goodwin, for app’lt; Dwight S. Mason, for resp’t.
   Daly, C. J.

It is not necessary to inquire what difference, if any, there is between the facts in this case and in that of a fellow workman of the plaintiff who was injured at the same time and from the same cause, and whose judgment against the defendant for damages we reversed- upon appeal, upon the ground that no negligence on the employer’s part was established, but that plaintiff’s injury was the result of his own or his fellow workman’s choice of the implement which he used. Oellerich v. Hayes, 8 Misc. 211; 59 St. Rep. 221. This judgment will have to be reversed for error in charging, at plaintiff’s request, a proposition which cannot be defended upon reason or authority. The court had already instructed the jury, at plaintiff’s request, that:

“The rule is unqualified that a master is bound to use all reasonable care, diligence, and caution in providing for the safety of those in his employ, and furnishing, for their use in his work, safe, ■sound, and suitable tools, implements, appliances, and machinery in the prosecution thereof, and keeping the same in repair. This is the master’s duty, and he cannot exempt himself from liability for this omission by delegating its performance to another, or, having required work to be done, by omitting precautions and inquiries as to the manner of its performance.”

—And had also charged, in continuation, at plaintiff’s request, seven other propositions, enlarging upon the principle in every conceivable particular. Finally, at plaintiff’s request, the court charged the next proposition, as follows:

“The duty of the master to the servant is to the result that the servant shall be under no risks from imperfect or inadequate machinery or other material, means, and appliances, or from -unskillful or incompetent fellow servants of any grade. It is for the master to do by himself or by some other."

To this instruction the defendant duly excepted.

This last instruction, following those that preceded it, summed up the whole duty of the master as undertaking to insure the servant from all risks from the perils named ; and whatever impression the jury received from the prior instructions as to the master’s-duty being confined to reasonable care, diligence, and caution was thus explained to be that he was, by himself or andther, to save the servant harmless from imperfect or inadequate machinery, means, and appliances, and from unskillful or incompetent fellow servants of any grade. That is not the master’s duty. He is liable only for .negligence. 14 Am. & Eng. Enc. Law, 873, and following. His negligence is the omission of reasonable care in the business in which his servants are employed. Slater v. Jewett, 85 N. Y. 61. The test of. his liability is not whether he neglected something he could have done, but whether he is reasonably prudent and careful. Leonard v. Collins, 70 N. Y. 90. Judgment, reversed; new trial ordered, with, costs to appellant, to abide-event.


text:
    Henry M. Robertson et al., Resp’ts, v. Peter Hay, App’lt.

      (New York Common Pleas, General Term,

      Filed April 1, 1895.)

    1. Resettlement of order—Power of court.
    A court has inherent power to resettle its own order so as to conform it to the actual adjudication.

      2. Supplementary proceedings—Adjournment.
    From an omission in the record to show a regular adjournment, a loss of jurisdiction in a supplementary proceeding will not be presumed.
    3. Same—Waiter of objections.
    A voluntary attendance and submission to examination, without objection, by the judgment debtor, operates as a waiver of an irregularity in the adjournment of the proceeding, so that, on appeal from an order adjudg ing him in contempt, he may not be heard to say that the court had not. jurisdiction to make the order.
    4. Appeal—Record.
    Objection cannot be raised in an appellate court that the record does not. present the true state of fact.
    Appeal from an order of the city court affirming an order resettling an order, and from an order affirming an order imposing a penalty for violating an order in supplementary proceedings.

      Moses H. Crossman, for app’lt; Adolph Cohen, for resp’ts.
   Pryor, J.

The resettlement of its own order was within the unquestionable jurisdiction of the court below, and is not open to challenge before a tribunal which is competent only to the review of legal error. Neither can we entertain the objection that defendant’s examination is incorrectly exhibited, but- are bound to-adjudicate upon the record before us. Whether, upon the proofs submitted to our revision, the order adjudging the defendant,, in contempt, and imposing the penalty for his misconduct, be without authority of law, is the sole question in controversy. The contempt imputed to the defendant consists is a disposition of his property contrary to the prohibition in a supplementary proceeding; and the specific act of misconduct charged is the assignment of a lease. The defendant impugns the validity of the order upon two grounds—First, that the lease was not his property; and, secondly, that, being of no value, its transfer was not of prejudice to creditors.

1. By the instrument of demise, the premises were let to the defendant alone ; he occupied the premises for the conduct of his business; it was against him, and him alone, that the summary proceeding was instituted ; he stated to the assignee that the lease “ belonged to him; ” he assigned the lease, and received the price of its transfer ; out of money so received, he paid the rent; until this proceeding, he never pretended that the lease was the property of his wife; no writing or witness evidences the assignment to his wife; and even she shrinks from swearing that she was owner of the lease. To what other conclusion could the court below come than that the lease was the property of the defendant ?

2. It is undoubted law that, to authorize the conviction and penalty of which the defendant complains, there must be proof of prejudice and damage to the creditor, Fischer v. Raab, 81 N. Y. 235 ; Moffat v. Herman, 116 N. Y. 131; 26 St. Rep. 328, and the defendant contends that there was no such prejudice or damage, because the lease was assigned after the end of term, and after his default in a proceeding for dispossession. But he was in occupation of the premises ; he was in occupation under a renewal for a year ; he received $275 for the assignment of the lease ; and out of this money he discharged a debt for rent due from him as tenant. Who can say that the lease was not a subsisting demise, and that a transfer of property worth $275 away from creditors was of no prejudice or damage to them ? As to the cancellation of the lease by the summary proceeding, he himself swears that he paid the rent to prevent dispossession; and he indorsed on the assignment that the term was unexpired. The only and the inevitable inference from his own testimony and admissions is that the lease was not canceled, but was assigned, and that he abandoned the possession to the assignee for the consideration'paid him. Indeed, if the lease were expired or canceled, what had he to assign ? and, if lie had nothing to assign, why should the assignee pay him $275 ? True, the assignee, moved no doubt by a benevolent compassion for the distressed condition of the defendant, now says that the $275 was a contribution of charity to the necessities of the defendant’s family. But in his .former affidavit he swears that “ the defendant executed an assignment of the lease to me for the sum of $300 ” ($25 of which was paid to the agent); and indorsed on the assignment to him are the words, “In consideration of the sum of $300, duly paid by Robert Schinzel, I do hereby sell, assign, transfer, and set over unto Robert Schinzel, his heirs assigns, adminstrators, &c., the within lease for the unexpired term therein.” Still, defendant insists that the court lost jurisdiction of the proceeding by irregularity in the adjournments. But the entry in the record is, “ Further examination adjourned by several adjournments to June 6th, 1891;” and why not by the court or referee? Code, § 2444. Nothing appears to the contrary; and loss of jurisdiction will not be presumed. Wright v. Nostrand, 94 N.Y. 33. At all events, by attending on the days to which the proceeding was adjourned, and submitting without objection to the examination, the defendant may not now be heard to say that the jurisdiction of the court had lapsed. Voluntary appearance is the equivalent of regular process. • The condition of the defendant’s family is doubtless deplorable, but we cannot relieve him in disregard of the plain add imperative mandate of the law.

Order affirmed, with costs.

All concur.