text:
    Cornelius N. Bliss et al., Resp’ts, v. Daniel E. Sickles, Sheriff, et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 16, 1892.)

      1. Appeal—Verdict.
    A verdict upon a question of fact presented to a jury upon disputed evidence should only be disturbed upon appeal in cases where it clearly appears to be wrong and against the weight of evidence.
    2. Sale—Fraud—Rescission.
    In an action to rescind a sale and recover the goods on the ground that the sale was induced by means of a fraudulent statement, it appeared that a portion of the goods were ordered before the statement was given, but were not delivered till afterwards. The order was for goods which were to be manufactured. Held, that the extending of credit was not completed at the time of taking the orders, and if, in delivering the goods, reliance was placed on the fraudulent statement, the sale could be rescinded.
    3. Same.
    To prove contemporaneous fraud it is not necessary to show that the fraudulent representations to others were made at the same time as those to plaintiffs; it is enough to show that the deliveries of goods by the others in reliance upon such representations were contemporaneous. ,
    Appeal from judgment, entered on verdict, in favor of plaintiffs, and from order denying motion for a new trial.

      A. Blumenstiel, for app’lts;

      Carter, Pinney & Kellogg (Frederic R. Kellogg, of counsel), for resp’ts.
   O’Brien, J.

The action was in replevin to recover the possession of the personal property described in the complaint, which had been sold to the firm of Fechheimer & Ban by the plaintiffs. That firm failed May 1,1890. The defendant banks above named recovered judgments against the failing debtors, and, under executions issued upon such judgments, the sheriff had levied upon and. taken possession of the merchandise in question. The execution creditors became parties to the suit subsequently, pursuant to motion made by them for that purpose. The value and identity of the property was agreed upon at the trial, so that the question of fraud was the sole issue of fact litigated. The plaintiffs claimed the right to rescind the contract of sale and to take the merchandise, upon the ground that the property was obtained from them by fraud. The alleged wrong was charged to have been perpetrated by means of the statement set forth in the case, which the plaintiffs say was delivered to them to induce the sale of the goods referred to, and upon which they relied. The defendants claimed that this document was never delivered to the plaintiffs, nor intended for them as a basis of any credit, but that it was handed to Cornelius U. Bliss, one of the plaintiffs, in his capacity as vice-president of the Fourth National Bank, to procure the discount of certain notes for the accommodation of defendants, which notes were fully paid before the failure. Upon this question of fraud the jury found against the defendants, and against the validity of the judgment entered on such verdict several grounds are urged. It is insisted that such verdict was against the weight of evidence, and that certain errors of law were committed in the admission of evidence, and in the judge’s charge, which entitle the defendants to a reversal.

Unquestionably the claim of fraud was mainly, if not solely, based upon the written statement of the defendants of their assets and liabilities, which was made in December, 1889, and delivered to the plaintiffs, as claimed by them, or to the bank, as claimed by the defendants. Where fraud based upon false representations is relied upon, it is the settled law that to maintain the action the plaintiff must establish, (a) that a false statement was made, intended to influence the plaintiff’s action in parting with the property ; (b) that it was relied upon by the plaintiff to his damage; (c) that it was made with intent to deceive and defraud. These propositions of law would exclude the idea that representations of a debtor to third persons not defrauded are available to establish fraud in favor of another creditor, from which it would seem to follow that if a creditor has notice or obtains possession of a statement which the debtor neither intended for him, nor to be acted or relied upon by him, such statement cannot form the basis of a cause of action for fraud in favor of such creditor. It is not j seriously claimed in this case that the statement made in December was not false; and assuming it to have been delivered to the plaintiffs, there was evidence sufficient to justify a verdict that the same was relied upon by the plaintiffs to their damage, and was made with intent to deceive and defraud them.

The crucial question, however, presented .for the consideration of the jury, was whether this statement was delivered to Mr. Bliss as a member of plaintiff’s firm, or given to him, or to the bank at his request, for the purpose of inducing the bank to discount certain notes for the defendants. Mr. Bliss’ testimony was, in effect, that the statement was handed to him after the notes were discounted by the bank on the same day in his office, and was intended, not as a statement for the bank, but as a statement to his firm, and that subsequently he delivered the statement to the bank, which retained the same until demanded by him prior to the commencement of this action. The defendants’ testimony was that the statement was delivered to the bank ; and this, to some extent, wras supported by the circumstance, of its being delivered on the same day of the discount of the notes to the bank, and by the further fact of its being held continuously thereafter in the bank’s possession. It will be noticed, however, that neither of the defendants who testified claimed personally to have knowledge of the actual delivery to the'bank, and, therefore, their stateraentto that effect does not overweigh that of Mr. Bliss, who testified positively that the statement was delivered to him in his office, and subsequently by him was delivered to .the bank. We think, upon the testimony, even admitting the strength of some of the circumstances which incline favorably to the defendants’ version, that it was peculiarly a question for the jury, and that their verdict thereon should not be disturbed. A verdict upon a question of fact presented to a jury upon disputed evidence should only be disturbed by this court upon appeal in cases where it clearly appears to be wrong and against the weight of evidence.

It is strenuously insisted, however, that, inasmuch as it clearly appears that the orders for a greater part of the goods to be manufactured were given prior to the making of the statement, such statement could not have been relied upon with respect to such orders by the plaintiffs in extending credit to the defendants. But we think that, in this insistence, the appellants overlook a very important consideration, which grows out of the time of the delivery of these goods. It is beyond dispute upon the evidence that the goods replevied, though some may have been ordered before, were all delivered subsequent to the making of the statement. The false statement was made in the first part of December, 1889, and the goods in question were delivered from January 11, 1890, to April 26, 1890, inclusive. With respect to the portion of the goods ordered and delivered subsequent to the statement, no question can arise. It remains to be considered whether the verdict was contrary to law as to goods ordered before, but delivered subsequent to the statement. "We think the cases of Whitten v. Fitzwater, 41 St. Rep., 380, and Talcott v. Einstein, 12 W. Dig., 442, upon the facts here appearing, are conclusive. The transactions between the parties did not relate to sales of goods which, at the time of taking the orders, existed in specie. They were goods to be manufactured. Ho title passed to defendants at the time of taking the order for manufacturing to be done thereafter, and until delivery, no claim could be made by defendants that they were the owners of the goods ; and hence, if in delivering the property, and thus vesting them with the rights of ownership, reliance was placed upon a fraudulent representation, the contract could be rescinded. In other words, we think that the extending of credit was not completed at the time of the taking of the orders, and that, in the disposition of the question whether the credit was extended to these goods to be manufactured, it must be resolved by a consideration, not only of the date of the orders, but also whether it existed until such time as the purchase was consummated, which was at the time of delivery.

In addition to the questions relating to the weight of evidence, and as to the time when the credit was extended in reliance upon the false statement, certain errors of law are assigned, which will be briefly considered. One of the reporters for the commercial agency of R. G. Dun & Co. was allowed to testify, under objection, to two conversations with different members of defendant’s firm, one in May, 1889, and another in August, 1889, which, it was shown, resulted in a report' to the agency, and subsequently to the firm of Oelbermann, Donnerich & Co., who claimed on the faith thereof to have sold goods to the defendants, and to have been thereby defrauded. The insistence of the defendants is that a statement of the debtors’ condition in December, 1888, which, in May and August, 1889, was reported to the agency as remaining unchanged, and which was made the basis of a subsequent purchase from, Oelbermann, Donnerich & Co., was not competent evidence, because not proof of contemporaneous fraud within the authorities. It is not claimed that the plaintiffs, in any way, knew of such statements, or were influenced thereby, but such evidence was introduced for the purpose of establishing contemporaneous, fraud.

It was proven that such statements were false, and evidence was adduced tending to support the view that they were relied upon by the firm of Oelbermann, Donnerich & Co. The appellants are right in their legal contention that, while it was competent to prove other fraudulent transactions with a view of raising an inference of fact, these transactions, to be admissible, must be shown to have been contemporaneous. The error into which the appellants fall, however, is in not distinguishing between the making of the statement and the commission of the fraud. The mere making of the statement in itself was no fraud, but became so only from its communication to a creditor who, in reliance thereon, parted with his property. Here, the transactions with Oelbermann, Donnerich & Co. relied upon were not consummated until the goods were actually obtained by the vendees, and the dates of the deliv- • cries are the dates of the perfected transactions, which, if legally based upon the antecedent statement, are fraudulent and void at the vendor’s option. Applying this rule, it will be found that the deliveries by Oelbermann, Donnerich & Co. were made during the same period that goods were obtained fi-om the plaintiffs, and thus they were contemporaneous acts of fraud, and competent as evidence within the authorities.

Another error assigned is that raised by the exception taken to the charge of the court, in substance, that “ this action is virtually a contest between the plaintiffs and the two banks as to who should have the goods or their value.” We think that this statement should not have been made; but when considered in the light of the very clear and explicit charge of the judge as to the issue of fraud presented for the consideration of the jury, we are satisfied that it could have in no way prejudiced or injured the appellants. The issue of fraud was made the salient feature of the judge’s charge, and was formulated and presented in various ways, not only in the direct charge, but in the requests made by appellants’ counsel to charge which were granted. Upon the whole case, we do not think that the errors assigned are tenable, or such as would justify us in interfering with the judgment. Our opinion, therefore, is that it should be affirmed, with costs and disbursements.

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


source: Caselaw Access Project

author: Lawrence, J.

license: Public Domain

text:
    John I. Goodrich, Resp’t, v. John Gillies et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 16, 1892.)

    Mechanics’ lien—New York city.
    A sub-contractor who files a notice of mechanics’ lien under the Consolidation Act, Laws of 1882, chapter 410, wilfully and fraudulently misrepresenting in such notice the amount due him, by including material known to him to have been rejected by the contractor, and not used, is not entitled to a lien even for the portion of the material used in the work.
    Appeal from judgment in favor of plaintiff, in action to foreclose an alleged lien upon moneys in the hands of the comptroller of the city of New York, due from said city to the defendant Gillies, upon a contract between him and the city to build a pier and bulkhead at the foot of Rivington street, East river.

      Thomas F. Maguer, for app’lt;

      Eastings & Gleason, for resp’t.
   Lawrence, J.

This cause was before the general term on an ■appeal from a judgment rendered at special term in December, 1891. That judgment was reversed, as appears from the opinion then delivered, on the ground that it did not appear that the merchandise which was the subject of the lien, or any part of it, had been used towards the performance or completion of a contract made with the mayor, aldermen and commonalty of the city of New York, and that, therefore, a case was not made out entitling the plaintiff to a lien, under the provisions of § 1824 of the Consolidation Act. The court,on the trial, which resulted, 62 Hun, 479; 42 St. Rep., 319, in the judgment from which the present appeal is taken, found,as a matter of fact,that, of the material contracted to be sold and delivered by the plaintiff to the defendant, fifty-one pine sticks, of the value of $5.60 each, were actually used by the defendant in the execution and completion of the contract between the defendant and the city of New York; and, also, that the whole amount of the sticks delivered by the plaintiff to the defendant amounted to 141. There were fourteen other sticks for which the plaintiff also claimed a lien, and the amount for which such .lien was claimed was stated in the notice to be,after deducting just credits and offsets, the sum of $650.14, with interest. It was found by the court that the value of the 141 pine sticks delivered by the plaintiff, after deducting a payment on account thereof of $161.86, was and is the sum of $571.74. It was also found, as a matter ■of law, that the plaintiff was only entitled to a lien for $285.60, being the value of the 51 sticks aforesaid, with interest. Although the court found that but 51 sticks out of the 155 claimed by the plaintiff to have been delivered to the defendant were used in the execution and performance of the contract with the city, it is found that the plaintiff filed a notice of lien with the city officers, claiming that there was due and owing to him at the time of such filing, after deducting all just credits and offsets, the full sum of $650.14. In other words, plaintiff filed a claim for much more than double the sum due him for materials furnished by him which were used in the performance of the contract. The evidence of the plaintiff himself, taken upon the trial, conclusively shows that he must have known at the time he filed the notice of lien that the amount claimed by him was not the true amount due and owing to him for which he was entitled to a lien. He claims, in his notice, that all the materials were actually used in the execution of the contract with the city. In his testimony, he admits that the fourteen sticks aforesaid were rejected, and that they were not used in the performance of the contract, and he admits that, knowing this fact, he,, notwithstanding, filed a notice of lien in which the value of those sticks was included as a part of his claim, against the defendant.

It also appears from his testimony that the third instalment of thirty-five piles which he delivered on the 28th of June, 1889, were not used in the construction of the pier. He states that he agreed to take four dollars apiece for that instalment of. piles, or $1.60 less than the original agreed price. He was asked: “ Why did you agree to throw off that $1.60 on those piles? ” and his answer was: “Because it was better to do that than to have the expense of moving them anywhere else. I agreed to take them away, because the city could not use them. I had to take them away. I agreed to throw off'$1.60 on every one of them, and then he took the whole lot rather than take the other third of them away. The other third was not so poor that I had to deduct something. I knew that I would have to take away the one-third, because the inspector rejected them, and they could not go into the work.” It also appears that he knew that a subsequent lot, sent on the 10th of July, did not go into the construction of the pier, because, in his letter of July 1st, referring to short sticks in the last lot of thirty-five which were rejected by the defendant, he states that he has another lot of the same kind, “which he will send, and expect the defendant to take." It is very clear from other portions of the testimony of the plaintiff that he also knew at the time he filed his notice of lien that other sticks of the timber which formed the subject of this lien did not go into the construction of the pier; and yet he filed a notice of lien which covers every stick of timber, whether accepted or rejected by the defendant. A party should not be allowed to proceed in this manner, and, unless there is something in the lien law contained in the consolidation act which precludes us from acting so, we should, under such circumstances, prevent the plaintiff from enforcing a lien for any sum whatever. Liens of this character rest and must find support entirely upon the statutes authorizing them, Benton v. Wickwire, 54 N. Y., 226 ; and it has always been held that the notices of lien filed under such statutes must comply with the terms of the statute, and must be truthful in their statements; and under the general mechanic’s lien law it has been held that a notice of lien which did not correctly state the name of the debtor could not effect a valid lien, nor sustain proceedings for its enforcement. Kneel. Mech. Liens (2d ed.), § 163. It was also held by the general term of this department, in Foster v. Schneider, 50 Hun, 151; 19 St. Rep., 449, that under chapter 342 of the Laws of 1885, relating to mechanics’ liens, which requires the notices filed with the clerk to contain a statement whether all the work for which the claim is made has been actually performed or furnished, and, if not, how much of it, a notice which fails to state how much of the work under the contract remains to be performed, but states that it has all been performed, when in fact it has only been partly performed, does not entitle the claimant to a lien. In that case, Judge Daniels, in delivering the opinion of the court, said:

“It cannot be said that a misrepresentation of this description would not invalidate the proceeding, for the legislature, as a part • of the proceeding by which the lien is to be secured, has provided otherwise. It was intended in this manner (he says) that a truthful statement of the facts should be contained in the notice; and that probably was intended to be for the benefit of other claimants, as well as of the owner of the property, and the truthful information of the court And the courts can no more dispense with the observance of this requirement in the making and filing of a notice than they can with that of any other direction required to be observed for the purpose of creating a lien.”

See, also, cases cited by Daniels, J., in Gaskell v. Beard, 58 Hun, 107; 33 St. Rep., 852. Sections 1824-1838 of the consolidation act provide for the filing of liens by persons who may perform any labor or furnish any material towards the performance or completion of any contract made with the city. And § 1825 of that act prescribes that—

“ At any time before the whole work to be performed by the contractor for the city is completed or accepted by the city, and within thirty days after the same is so completed or accepted, any claimant may file with the head of the department or bureau having charge of said work, and with the comptroller, notices stating the residence of the claimant, verified by his oath or affirmation, stating the amount claimed, from whom due, and, if not due, when it will be due ; giving the amount of the demand after deducting all just credits and offsets, with the name of the person by whom employed, or to whom materials were furnished; also a statement of the terms, time given, conditions of his contract; and also that the work was done or materials were furnished to the said contractor, and were actually performed or used in the execution and completion of said contract with said city; but no variance as to the name of the contractor shall affect the validity of the said claim or lien.”

It will thus be perceived that the statute provides that a variance in the name of the contractor shall not affect the validity of a claim or lien. This was probably inserted in the act because, as has already been stated, under former decisions under the mechanics’ lien law it has been held that such a variance would be fatal to the notice of lien. Section 1825 of the consolidation act does not make any other exception. The case of Gaskell v. Beard, 58 Hun, 101; 33 St. Rep., 852, holds that under the consolidation act, Laws 1882, § 1825, if, in a notice of lien filed thereunder, a person, without any fraudulent intent, or through mistakes on the part of those having in charge the details of the business, claims a larger amount in the notice of lien than is shown by the evidence to be due him, the lien in such case may be enforced, notwithstanding the error in the amount claimed in the notice.

We do not regard that case as being applicable to the case at bar, for the reason that the plaintiff admits that, at the time he filed his notice of lien, he knew that a large proportion of the materials furnished by him had not been used in the performance of the contract with the city ; that a portion of such materials had been rejected by the contractor; and that he had sold - other portions thereof for other purposes than for the performance of the contract with the city. Under such circumstances, we think that the plaintiff wilfully and fraudulently misrepresented in his notice of lien the amount which was due to him, and that, therefore, he should not be allowed to obtain a lien for the fifty-five sticks, which were the only portion of the materials furnished by him that was used in the execution of the contract. In other words, we think it is our duty so to construe this statute as to prevent parties from obtaining a lien by following in their notice the language of the statute, when they know that the proof which they m ust give when an action is brought for the enforcement of the lien must fail to establish that they are entitled to more than a small portion of the sum for which the lien is claimed. To permit such a practice would be to enable a subcontractor to fraudulently, and by the means of his own wrong, prevent the contractor with the city from obtaining his money, and aid him in forcing a settlement of a demand to which the contractor may have, as he claims in this case to have, an ample and substantial defense. We think that the plaintiff has failed to show by his evidence that, under the notice of lien as actually filed by him, he was entitled to a lien upon the moneys in the hands of the comptroller, and that he should be remitted to his ordinary action at law to establish such claim as he may have against the defendant. The judgment below must be reversed, and a new trial ordered, with costs and disbursements to the appellant to abide event.

Yah Brunt, P. J., and Lawrence, J., concur.


author: Van Brunt, P. J.

text:
    Nathan Cohen, Resp’t, v. John Simmons, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 16, 1892.)

    1. Adjoining owners—Lateral support.
    One who owns a leasehold estate in lands has such an interest therein as entitles him to maintain an action for damages against an owner of adjoining premises who violates a law which provides that any person excavating to a depth of more tha'n ten feet shall protect adjoining walls.
    2. Same.
    Where such an act provides that the person making the excavation, if afforded the necessary license to enter on the adjoining land, and not otherwise, shall secure the wall from injury, the owner of such wall is not required to tender the license, but only to grant it when requested.
    8. Same—Charge.
    In an action for damages resulting from a neglect to protect an adjoining wall, the court refused to charge that “if there were any defects in plaintiff’s building before defendant began to build, and that while defendant was endeavoring to support this building these defects became enlarged, and defendant was not guilty of negligence, plaintiff cannot recover.” Held, no error.
    Appeal from a judgment entered on the verdict of a jury, and from an order denying defendant’s motion for a new trial, in an action to recover damages to personal property.

      Johnston & Johnston (E. W S. Johnston, of counsel), for app’lt ;

      Horwiiz & Hershfield (Otto Honvitz, of counsel), for resp’t.
   Van Brunt, P. J.

This action was brought to recover damages for injury done to certain premises of the leasehold of which the plaintiff was the owner. The defendant, as owner of premises adjoining the plaintiff’s, made excavations to the depth of fourteen feet, and, by reason of the fact that the walls of the plaintiff’s premises were not properly shored up and protected, they were very badly injured, and for the damages thus sustained this action was brought. It is claimed, upon the part of the defendant, that the action could not be maintained because it was brought by the owner of a leasehold estate for years in land adjoining the excavation, against the owner of the land on which the excavation was made; and that the statute clearly contemplates a right of action in the owner of the fee of adjoining premises, and does not include the holder of a leasehold interest in such fee. We have examined the statute in vain to find any such restriction as to the right of recovery. It would appear that anybody who is injured by a violation of the statute has a right to maintain an action for the damages sustained thereby. It is suggested in the points of counsel that the plaintiff did not prove that he was the owner of the buildings nor of the wall, only that he was the owner of a leasehold interest therein, and that he had even parted with possession thereof to a subtenant, on whom was the duty to make the repairs to such leasehold, and in whom vested the right to recover of the defendant or his contractors the damages sustained, a proposition somewhat inconsistent with the one previously urged. It is true that the plaintiff in his complaint alleged that he was the owner of the building upon the leasehold premises, and we have searched the record in vain to find proof of that fact. But no point whatever was made during the trial of such want of proof, otherwise such proof might have been furnished; but the broad proposition was insisted on that, as he was the owner of the leasehold and not the owner of the fee, therefore he could not maintain any action, which, as we have already seen, does not at all follow from the provisions of the statute under which this action is brought.

The claim that the plaintiff’s tenant was bound to make the repairs, and that, therefore, the right of recovery was in him, is equally untenable. He was not bound to make any such repairs as were occasioned by the trespass committed by the defendant’s contractors. These were not the repairs contemplated by his lease, even if any were required. But as the lease is not contained in the case, it is impossible for us to ascertain whether, under the lease, he was required to make repairs or not. It appears from the evidence that the plaintiff was the owner of these premises for a term of years, and he had leased them to this tenant, who moved out because of the damage done to the premises; that the plaintiff had repaired the premises, and that the tenant had come back, and consequently whatever damage was sustained was sustained by the plaintiff, and nobody else.

It is further claimed that the occupant of the premises refused to allow the defendant’s contractor to enter upon the premises for the purpose of shoring up the wall and protecting the foundation, and that he did not give such permission until after the foundations were up, and the beams had been taken out of the cellar, and until the building had sustained the injury for which this action was brought. But the evidence in regard to this proposition was conflicting. There was evidence offered upon the part of the plaintiff that, although the tenant, Trujano, refused consent, yet, upon application to the plaintiff, the owner of the premises, such permission was given, and an attempt was made to shore up the wall, but it was so únskillfully and improperly done that the injury complained of was done. This question was submitted to the jury, and they were instructed that, if this permission was refused, the plaintiff could not recover. In the consideration of this proposition the court does not pass upon the right of excavators to riddle the wall of an adjacent building with holes under the pretext of supporting it.

The further claim is made, or seems to be made, that this license should be tendered, and, if not tendered, no recovery could be had. It is apparent from the language of the statute that such was not the intention of the legislature. How is the adjacent owner to know that it is the intention of the parties excavating in an adjoining lot to go more than 10 feet below the curb? The duty to shore up arises from such intention, if afforded the necessary license. It is, therefore, clear that the license must be applied for and the shoring, up done, unless such license is refused.

It is further urged that, if any cause of action exists, it is not against the defendant, but against the contractors, who caused the excavation to be made to a depth below ten feet after the defendant had parted with the control of the property and of the work, for such excavation to a depth below ten feet was not intended or contemplated at the time of the making of the original contract between the defendant and his contractor, and the time when he contracted and parted with the control of his property. But it does appear that subsequent to the first contract a second contract was made, which did contemplate going to a depth of fourteen feet; and the claim is now urged upon this court that, because the defendant parted with the possession of the property to the contractors under a contract to go ten feet, when he made a new contract to go fourteen feet a recovery could only be had .against the contractors. This proposition does not merit discussion.

It is urged that errors were committed because of the refusal of the court to charge certain requests of the defendant. It would appear that one of those requests was charged which was clearly too favorable to the defendant, as no such rule as is there laid down obtains ; exactly the reverse of the proposition having been held in the case of Bernheimer v. Kilpatrick, 58 Hun, 316; 25 St. Rep., 837. It is further claimed that it was error to refuse the request of the defendant to charge that, if there were any defects in the plaintiff’s building before the defendant began to build, and that, while the defendant was endeavoring to support this build-in these defects became enlarged, and the defendant was not guilty of negligence, the plaintiff cannot recover. It certainly was not error to refuse this request. The statute does not say anything about negligence. It provides that excavators shall, at all times, from the commencement tó the completion of the excavation, at their own expense, preserve such wall from injury, and so support the same by a proper foundation that it shall remain as stable as before the excavations were commenced. It is entirely immaterial, as far as this act is concerned, whether the excavator allows the adjoining house to fall scientifically or negligently. The same rule of damage obtains in either case. Various other exceptions are raised by the record, but none of them seem to need any special discussion.

The judgment and order should be affirmed, with costs.

O’Brien and Barrett, JJ., concur.


author: O’Brien, J.

text:
    Caroline A. Middlebrook, Resp’t, v. Mary E. Travis et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 16, 1892.)

    1. Partition—Pleading—Demurrer.
    In an action for partition a co-defendant demurred to the complaint on the ground that as to him it did not state facts sufficient to constitute a cause of action. Held, that the demurrer was properly overruled as frivolous.
    2. Same.
    In such action, husbands of certain tenants in common were made defendants, and set up in their answer misjoinder of parties as to them, and the pendency of a prior action for the partition of the same premises, and including the same parties, excepting themselves. Held, that a motion to strike out such answer as frivolous should not be granted.
    Appeal from an order of reference on title, and overruling demurrer of one defendant and granting judgment on answers as frivolous.

      Edward Wells, Jr., for app’lts
    Mills; Michael H. Gardozo, for app’lts,
    Shearman and Bowne; John M. Rider ( Wilson M. Powell, of counsel), for resp't.
   O’Brien, J.

This is an action for partition. It comes to the general term upon an appeal by the defendants, Virginia H. and James C. Mills, Mary E. and M. V. B. Travis, Mary A. and George Shearman, and Caroline C. and Addison Bowne, from an order of the special term overruling the demurrer of the defendant, M. V. B. Travis, as frivolous, and ordering judgment upon the answers of other said defendants as frivolous, and ordering the usual reference on title. Under the will of Stephen Allen, who died in 1852, the title was tied up by a trust for the life of his daughter, Mary Ann Hart, upon whose death, on July 21,1892,' the title passed in fee to his children and grandchildren, who, with their husbands, were made parties to this action. The complaint, after setting forth the interests of the various parties, alleged, with respect to certain of the appealing defendants, that they had a tenancy by the curtesy initiate in the share of said premises of which the wife is seized. To this complaint the defendant, Martin Yan Burén Travis, demurred, upon the ground that, as to him, it did not state facts sufficient to constitute -a cause of action. Upon the authority of Barnes v. Blake, 59 Hun, 371; 36 St. Rep., 210, and Townsend v. Bogert, 126 N. Y., 370; 37 St. Rep., 488, this demurrer was properly overruled as frivolous. Other defendants who, as above, were stated to be tenants by the curtesy initiate, answered and set up either or both of two separate defenses: (1) A misjoinder of parties; (2) the pendency of a prior action for the partition of the same premises sought to be partitioned herein, and including the same parties, except the husbands of the tenants in common. To the answers thus interposed a motion was made for judgment upon the same as frivolous, which was granted, and from the order directing judgment on their answers as frivolous these defendants appeal.

We might well dispose of this case by what was said in a per curiam opinion delivered by this court in the case of Bank v. Swift, 36 St. Rep., 997:

“The order appealed from has been argued * * * precisely the same as though it came before this court upon a demurrer, and the question involved is certainly not so clearly in favor of the respondent as to justify the court in striking out the answer as frivolous.”

In other words, we have frequently called attention to the fact that a motion to strike out a pleading as frivolous is not a substitute for the practice which requires a demurrer to be interposed to a pleading which, upon its face and upon inspection, is not frivolous. Here the questions^which, upon a motion to strike out a pleading as frivolous, were disposed of by a learned opinion at chambers, are supplemented upon this appeal by a voluminous brief of the respondent, and are presented as though they were raised and disposed of by demurrer. That a demurrer, and not a motion, was the proper practice, is evident when we come to consider the questions involved. The first to which attention has been called is, whether or not a husband is a proper party defendant in an action involving the partition of property in which his wife is seized of an interest. Reference to the opinion in the case of Barnes v. Blake, supra, will show that this question is by no means settled. And the other case, of Townsend v. Bogert, supra, is authority for the practice that, while a demurrer would not lie to the complaint in a partition suit making a husband a party, the question could be raised by answer. In the opinion written in this very case the learned judge at special term places great stress upon the fact that here the husbands might have an interest in the property of their wives, for the reason that, as “the remainder in the property vested in the parties in the year 1852, * * * it might be doubted whether the subsequent statutes affecting the rights of married women would affect the tenancy by the curtesy initiate that had vested prior to the passage of the actand we do not say but correctly that “ the husbands of the owners of the fee were clearly improper parties.”

With respect to the second defense, he, in effect, held that the pleading was not sufficiently definite to set forth the defense of a prior action pending; his criticism of the form of the plea being that:

“ None of these answers allege that the prior actions were between the same parties to this action. All that they allege is that some of the parties to this action were parties to the prior action, and the parties to this action who were not parties to the prior action being proper parties to the action for partition, the pendency of the prior action is not a defense in this action.”

It will thus be seen that stress was again placed upon the point that the husbands were proper parties, and that the form of the plea of a prior action pending was thus defective. The answers of the different defendants, though dissimilar in phraseology, are substantially the same, and, for the purpose of disposing of this question, we can refer to this defense of a prior action as pleaded, for illustration, by Shearman and Bowne, which is as follows :

“ The said defendants allege that, at the time of the commencement of this action, there was pending in the supreme court in and for the city and county of Mew York, another action for the partition or division and sale of the lands and premises described in the complaint in this action, wherein the defendant Mary B. Travis is plaintiff, and the plaintiff herein, Caroline A. Middlebrook, was a defendant, and that the other parties named as defendants therein are the defendants in this action; and that, as said defendants are informed and believe, said action, brought by said Mary B. Travis against said Caroline A. Middlebrook and others, was commenced prior to the commencement of this action.”

With respect to this answer, assuming the correctness of the criticism passed upon it by the learned trial judge, viz., that it is defective in not showing that the defendants in this action are named as defendants in the other, which might go to the extent of showing that there was a defect of parties, the fact that there was such defect of parties in the prior action would present a serious question whether this rendered the plea bad. We do not, however, think it is necessary to resolve these questions, but have pointed out the character of the questions presented by the answers of those defendants which were stricken out upon a motion as frivolous, for the purpose of showing that, instead of having these answers stricken out as frivolous, the proper manner of raising the questions would have been upon a demurrer. Bor this reason, we think that, while the order appealed from, so far as it overrules the demurrer interposed, should be sustained, the rest of the order appealed from should be reversed, and the motion to strike out the answers as frivolous denied, with costs of motion and of this appeal to the defendants whose answers were thus stricken out, and who appealed from the order.

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


text:
    Aaron Healy et al., App’lts, v. Isaac Brandon et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 16, 1892.)

    1. Sale—Warranty'.
    The defendants, as brokers, agreed to sell plaintiffs “Panama hides, ex Newport, at pier 43.” In an action to recover damages for alleged defects in the hides, no evidence was offered to show that the hides were not Panama hides, or that they were not “ ex Newport, at pier 42,” or that defendants were guilty of fraud or deception, but that the hides could not be converted into merchantable leather, for which purpose they were purchased, because of hidden defects, which could not have been discovered prior to the attempt to convert them into leather, except by chemical tests. Held, that the complaint was properly dismissed.

      2. Same—Evidence.
    In .such case, an expert cannot be allowed to testify that the word “hides,” as used in the contract, applied only to “skins ” which have the quality of being converted into leather, no custom or usage having been pleaded in the complaint.
    Exceptions ordered to be heard in the first instance at general term.

      Shearman & Sterling (Thomas G. Shearman and Everett P. Wheeler, of counsel), for pl’ffs;

      Julius Goldman (James M. Bennett, of counsel), for def’ts.
   Lawrence, J.

The appellants, on the 19th of August, 1887, purchased 501 Panama hides of the respondents, at 14£ cents per pound. The contract between the parties is evidenced by Exhibit A, which is as follows:

“Pickard & Andreson, Brokers in Hides and Skins,

“ 69 Gold Street, P. 0. Box 808.

“New York, August 19, 1887.

“ Sold for ac. Messrs. Isaac Brandon & Bros.

“ To Messrs. A. Healy & Sons.

“ 509 Panama hides, ex Newport, at pier 42, H. R, at 14-|c. pr. lb.; cash, less 1 per cent.; to be weighed up as they are.

“Pickard & Andreson, Brokers.”

It appears from the evidence in the case that, after this contract had been made, the plaintiffs received from the defendants certain . articles purporting to fbe “ hides,” but which the plaintiffs now allege were not “ hides,” as that term is known and used in the tanning and leather trade. The goods were duly weighed, as provided by the broker’s note or contract, and the following receipt was signed by the plaintiffs:

“New York, Aug. 19, 1887.

“ Messrs. A. Healy & Sons, 5 Perry St.,

“To Isaac Brandon & Bros., 35 Broadway. Dr.

“ Terms: Net cash this day.

“ Received payment, 23, 8, ’87.

“ Isaac Brandon & Bros.”

It also appears that there was a difference of eight skins in the amount delivered and the amount called for by-the contract; but no point is made of this; and the shortage is not material in the disposition of the case. It is alleged in the complaint that all genuine hides possess certain inherent qualities, which enable them to be converted into merchantable leather, and it was only such hides that, “ at the time herein mentioned, the defendants professed to sell, no other hides having any value for tanning purposes.” It is further averred that, when the plaintiffs purchased said 501 articles, they believed the same to be genuine hides, capable of being converted into merchantable leather, and purchased them for the sole purpose of converting them into merchantable leather; all of which facts were, as plaintiffs are informed and believed, known to the defendants at the time of the transaction. It is also alleged that, shortly after purchasing said articles, the plaintiffs attempted to convert them into leather by the usual process of tanning employed in such cases, and in the course of such process it was discovered that the said articles did not possess the qualities essential to enable them to be converted into merchantable leather, and that it was not possible for the plaintiffs, by any exercise of skill and labor, to convert them into merchantable leather, for the reason that, prior to said sale, the said articles had, as plaintiffs are informed and believed, been subjected to some treatment which deprived them of the said qualities. It is averred that the said defects could not have been discovered prior to the attempt to convert them into merchantable leather, except by chemical tests made by an expert, and there was nothing in their appearance which in any way indicated such defects, and that the plaintiffs were ignorant of such defects at the time of purchase, and would not have purchased the said articles if they had known that they were not genuine hides; and, as plaintiffs are informed and believed, the defendants were ignorant of any such defects, and sold the said articles to the plaintiffs, supposing that they were genuine hides, and could be converted into merchantable leather 'in the usual way. It is further alleged that, after discovering the facts, the plaintiffs gave notice to the defendants of such facts, and offered to return the property purchased, and demanded repayment of the purchase price, which was refused ; and the plaintiffs thereupon gave notice to the defendants that they would sell the said articles for the account of the defendants; and that, pursuant to said notice, they did make a sale of the same for $794.09, which was the best price which could possibly be obtained for the same, and which was in fact much larger than the same were actually worth. It is also averred that the plaintiffs laid out and expended for carting and transporting, and for work, labor and services in respect to said articles, certain sums of money. The action is brought to recover the damages alleged to have been sustained by them by reason of the premises. The defendants, by their answer, deny any knowledge as to the business of the plaintiffs, and deny that the defendants were engaged in the business of selling hides for tanning purposes, and generally they deny the material allegations in the complaint upon which the alleged cause of action rests.

Most of the exceptions which were taken to the rulings of the justice at circuit relate to questions which were propounded for the purpose of establishing that the articles in question were not hides; and, if those exceptions are not well founded, it follows that the case was properly disposed of at the circuit. It is now perfectly well settled that, in order to constitute a warranty upon a sale, it is not necessary that the representations should have been intended by the vendor as a warranty; and that if the representation is clear and positive, and not a mere expression of opinion, and the vendee understands it as a warranty, and, relying upon it, purchases, the vendor cannot escape liability by claiming that he did not intend what his language declared. It is also well settled that there is no distinction in principle between a representation as to the quality and condition of an article and one as to its character, and that what would amount to a warranty in the one case is a warranty in the other. See Hawkins v. Pemberton, 51 N. Y., 198; White v. Miller, 71 id., 118, and the cases cited. It will be seen, however, upon reference to those cases, and several others to be found in the reports which hold the same doctrine, that they really proceed upon the fact that the article sold was a different thing from that which was contracted to be sold, and not the same in substance. In Hawkins v. Pemberton, supra, the article was sold as blue vitriol, sound and in good order; the article delivered was Salsburger.vitriol, composed of a small proportion of blue vitriol, the residue being ■ green vitriol. Earl, Commissioner, in his opinion at page 207, says:

“ The article sold, if it was known at all in the market, was known by another name. It had only from seventeen to twenty-five per cent of blue vitriol in it. It was not an inferior article of blue vitriol, but a different substance, with a small admixture of blue vitriol.”

So, too, in the case of White v. Miller, Andrews, J., in delivering the opinion of the court, says, at pages 129 and 130 :

“We think the modern doctrine upon the subject is reasonable and proceeds upon a just interpretation of the contract of sale. A dealer who sells an article describing it by the name of an article of commerce, the identity of which is not known to the purchaser, must understand that the latter relies upon the description as &. representation by the seller that it is the thing described; and this constitutes a warranty.”

Applying the principles enunciated in these cases to the case at bar, we think the rulings of the justice at circuit were correct. It is alleged by the plaintiffs in their complaint, and assumed on this argument, that the defendants were ignorant of the fact that the articles delivered were not hides. No offer was made to show that the articles in question were not “ Panama hides,” which was what the brokers’ sold note called for (see Exhibit A), nor was it offered to show that they were not “ ex Newport, at pier No-42, North river.” There is no evidence in the case, and none wits offered, to show that the defendants were guilty of fraud or deception. The defendants were not manufacturers of the article sold, and they delivered exactly that which they contracted to sell, to wit, the articles purporting to be Panama hides, from the Newport, at pier 42, North river. Without attempting to reconcile all the decisions which have been rendered in the courts of this state upon the subject of implied warranties upon the sale of goods, we think that the decision of the court of appeals in the case of Dounce v. Dow, 64 N. Y., 411, lays down the legal principle which controls this case, and sustains the view adopted by the learned justice before whom the cause was tried. In that case the defendant ordered of the plaintiff, a dealer in, but not a manufacturer of, iron, ten tons of “ XX pipe iron,” to be used in the manufacture of castings for farm implements, which required soft, tough iron. Plaintiffs forwarded iron of the brand specified, and billed it as such, which was accepted by the defendant without testing, and a large portion used, when it was discovered to be hard and brittle, and unfit for the required purpose. In an action upon a note given for the purchase money, wherein the defendant set up as a counterclaim the damages sustained by the use of the iron, it was held that there was a warranty of the character of the iron as “ XX pipe iron,” but not as to any certain quality of that brand, as the plaintiff could not be presumed to know the precise quality of every lot bought and sold by him; and that the plaintiff, in the absence of fraud, was only bound to deliver iron of the specified brand, and that it was not enough that he knew the purpose for which it was required to bind him to deliver the quality required; that the defendant should have exacted a specific warranty which would have survived the acceptance. Church, Chief Justice, in delivering the opinion of the court, says at page 415:

“ There was no fraud. Both parties supposed, doubtless, that the iron was first quality for the purpose for which it was intended. But it is not enough that the plaintiff knew such purpose. The defendant should have exacted a specific warranty, and then both parties would have acted understandingly. * * * Here both parties acted in good faith. The defendant ordered simply ‘XX pipe iron,’ supposing that such iron was always tough and soft. The plaintiff forwarded the iron under the same impression. The iron proved to be brittle and hard, and the question is, which party is to bear the loss? The plaintiff, in the absence of fraud, was only bound by his contract, which was to deliver ‘XX pipe iron,’ and we are now assuming that such iron was delivered. If so, he was released from liability.”

In the case at bar both parties supposed the articles to be hides. The contract called for Panama hides. As already stated, there was no evidence offered to show that, in point of fact, the articles were not Panama hides. We think, therefore, that the defendants delivered, and the plaintiffs received, the articles which the one had sold and the other had purchased; and that under Dounce v. Dow, supra, no recovery could be had by the plaintiffs for the damages alleged to have been sustained by them. Again, even assuming that there was an implied warranty that the articles in question were suitable for the purpose for which the plaintiffs say they designed them, the fact that upon a sale at auction, in open market, the goods which were purchased for $1,840.34 brought the sum of $794.09, nine months after the original sale, goes far to show that the article could not be said, under any circumstances, to be entirely unmerchantable. However that may be, we are of the opinion that the rule of caveat emptor here applies, and, there having been no fraud and no expressed warranty, the plaintiffs, after acceptance of the article, cannot be heard to say that they were not the articles which the plaintiffs contracted to purchase, ' and which the-.defendants contracted to sell. Almost all of the exceptions taken to the rulings of the court at circuit relate to evidence offered to show that the goods in question were not hides; and it necessarily results, from the view which we have expressed, that these exceptions are of no avail to the plaintiffs.

There was a further exception, at folio 66 of the case, to the ruling of the court striking out the answer of the witness Healy to the question “whether or not any skins are called ‘hides’ in the trade, or known as. such, which have not this quality of being converted into leather by the process you have described.” The answer was : “Ho, sir; not that I know of; never heard of any.” We think there was no error in striking out this testimony, because the question was clearly improper, under the rulings already made; and also because it called for the opinion of an alleged expert upon the meaning of a word which required no definition or explanation from an expert. The word “ hide ” is defined by Webster to be “ skin of an animal, either raw or dressed, more generally applied to the undressed skins of the larger domestic animals, as oxen, horses, etc.” There was no dispute of the fact that the articles delivered under the contract between the parties were skins. Indeed, the question itself designates them as “ skins.” To allow an expert, under such circumstances, to say that there was a hidden meaning in the contract, no custom or usage having been pleaded in the complaint, would have been improper; and it was the duty of the court; upon its -attentian being called to the answer by motion, to strike it out The exception to the question as to the items of expenditure, which the plaintiffs sought to show increased the value of the goods, is in our opinion unavailing. The result of our examination of this case is that none of the exceptions are well taken, and that the defendants are entitled to judgment, with costs and disbursements.

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


text:
    Herman Gernau, Administrator, Resp’t, v. The Oceanic Steam Navigation Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 16, 1892.)

    1. KBaniQBNCB.
    In an action for damages for the death of a child, it appeared that. while picking up wood upon defendant’s bulkhead, he struck his foot against a skid, which was leaning against a shed, and which fell upon and killed him. This skid was so heavy that it took three men to move it; no evidence was given to show that it was standing perpendicularly at the time of the accident. Meld, that no negligence on the part of defendant was shown.
    2. Same—Evidence.
    In such case, evidence on the part of defendant to prove the position of the skid the day before the accident was improperly excluded, the evidence having shown conclusively that the skid had not been used by defendant for several days.
    Appeal from a judgment of the trial term entered upon a verdict of a jury in an action for personal injuries resulting in death.
    Wheeler, Coriis & Godlcin (Lawrence Godlcin and 72. P. Wheeler, of counsel), for app’lt;

      Charles Stechler (Alfred Steclcler, of counsel), for resp’t.
   Van Brunt, P. J.

This action was brought by the plaintiff, as administrator, to recover damages for the death of his child, aged six years, through the negligence of the defendant. ' On the 25th of March, 1890, the deceased was picking up wood upon the bulkhead between the pier of the defendant and the Troy Line pier, which bulkhead was occupied by the defendant, and, as he was about moving from the position he was in, his foot struck against the toe piece of a skid belonging to the defendant, which was leaning against a shed or some boxes, and which fell upon the boy and killed him. This skid was so heavy that it took three men to move it On one side it was flat or smooth, and on the other was the crosspiece or toe piece spoken of. The only eyewitnesses of the accident were two small boys, thirteen to fourteen years old, who claimed to have seen its occurrence, and described it as happening as above stated. Evidence was offered upon the part of the defendant showing” that the boy, when found, was under the flat part of the skid ; and it was held by the court that if this was the case it was impossible-for the accident to have happened as described by the boys. The jury, however, found a verdict in favor of the plaintiff; and from the judgment thereupon entered, and from an order denying a. motion for a new trial, this appeal is taken.

Great stress is laid by the counsel for the appellant upon the-incredibility of the testimony of the boys who claimed to have-seen the accident; and certainly the contradictions which appear in the testimony of these witnesses upon the trial, which resulted in the verdict in question, and the testimony given upon a previous trial of this action, seem to throw considerable discredit upon the testimony given by them. But it is not necessary, in the disposition of this appeal, to base our conclusion upon the fact that, in our opinion, these witnesses were entirely untrustworthy, and their evidence was of such a character as not to support a verdict, for the reason that the case is entirely barren of any proof of negligence upon the part of the defendant It is claimed by the counsel for the respondent that this skid was standing almost perpendicularly, and not upon an incline. We have searched the record in vain to find any evidence of this character. There was a dispute between the boys who were examined as witnesses, and the witnesses for the defendant, as to whether this skid leaned against boxes or against a shed. But from the illustrations given by the boys as to the incline at which the skid stood, it is apparent that it was not standing perpendicularly, even in their opinion; and this is further evidenced by the fact that one witness, O’Neill, clearly indicates in his testimony that there was room enough behind the skid for boys to go around. He says :

“ The other boys and I did not go in behind that skid that day ; I am sure of that. I was behind other skids, but not behind that. I saw some of the boys running in behind other skids. I don’t think they ran behind this one. They might have done it when I was not looking.”

It is true that in another place he says that the boxes were in the way for the boys to go behind the skid; that there was no place between the boxes and the skid for a boy to get through; that he was sure of that. But when he illustrated in court the incline of the- skid, it was perfectly clear that there was sufficient room.

It was sought upon the part of the appellant to prove the position of the skid the day before the accident-. This evidence was excluded. This, we think, was error. The evidence showed conclusively that this skid had not been used by the defendant for several days, and, if it placed it in a secure and safe position, it was not responsible for the interference of interlopers with its position ; and it had a right to show that it was in a safe position the day before, because, in the absence of evidence that it had been moved, the presumption would be that it continued on the day of the accident in the same position as it was in the day before. It would be a harsh rule of evidence to require the defendant to show every instant the position of articles which might become dangerous by being interfered with by persons without authority so to do. When the defendant, therefore, offered to show that, within a reasonable time of the happening of the accident, this skid was in a safe position, and it had no notice whatever of any change, it was competent for it to establish this fact upon the question as to whether it was guilty of negligence or not. We think, for these reasons, that error was committed to the prejudice of the defendant, and that a new trial must be had, with costs to the appellant to abide the event.

O’Brien and Barrett, JJ., concur.


author: Barrett, J. Van Brunt, P. J.

text:
    James R. Hay, Resp’t, v. Thomas C. Platt, President, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 16, 1892.)

    1. Bkokees—Commissions.
    Simply because of the fact that a broker, two years prior to the sale of certain land, called the attention of the subsequent purchaser to the property, and informed him that it could he bought for the sum which was finally paid for it, such broker is not entitled to a commission.

      3. Same—Evidence.
    Conversations between the broker and the treasurer of the purchaser during the two years, in which the latter said that he hoped a sale would be consummated, and the broker obtain a commission, are inadmissible, but if admissible, have no probative value to the issue, as the treasurer had no authority to bind his company, and the conversations were not in the line of his duty.
    Appeal from a judgment and order denying motion for a new trial in an action to recover a commission upon a sale of real estate.

      Tracy, Boardman & Platt (Albert B. Boardman, of counsel), for app’lt;

      Page & Taft, for resp’t.
   Barrett, J.

This action is for the recovery of a broker’s commission upon the sale of certain real estate belonging to defendant. The main question is whether the plaintiff was the procuring cause of the sale. It appears from the plaintiff’s testimony that he had nothing to do with the immediate negotiations which resulted in the sale, and, in truth, knew nothing of the final transaction until it was completed. He bases his claim upon the fact that some two years prior to the sale he called the purchaser’s attention to the property, and informed such purchaser that it could be bought for the sum which was finally paid for it. The plaintiff had but a single interview with the defendant’s president, Mr. Platt, upon the subject, and that interview he sought. It lasted ten or fifteen minutes, and the substance of it was that Mr. Platt said that Mr. King, president of the Union Trust Company, or any one else could have the property for $400,000. That was the last Platt saw or heard of the plaintiff in the matter for about three years, when he called a second time to ask for a commission. At this time the sale had been closed for about a year. All that the plaintiff did after his first interview with Platt was to inform Mr. King and also Mr. McLean, who was the vice-president of the Union Trust Company, what Platt had said. This was in June, 1886. These gentlemen expressed surprise at the price, and made no offer of any kind. McLean finally said (we quote the plaintiff’s testimony): “Well, that is available property, but we do not want that property until we are through with our negotiations for the properties on the corner of Broadway and Wall;” and after a little further conversation that interview ended. The plaintiff, it will be observed, did not report back to Platt the result of this interview with Messrs. King and McLean, nor, in fact, did he do anything further in the matter, although he says he had interviews with representatives of the trust company extending down to August of the same year. Those interviews,, however, resulted in no offer for the property, and were not reported to Mr. Platt. There the matter rested until some two years later, when the property was independently sold.

It is entirely clear that upon this state of facts the plaintiff had no cause of action. He did nothing whatever to bring about the sale except to inform Mr. King that the property could be purchased for $400,000. He was authorized to sell the property for this sum, but he failed to bring the trust company to Platt’s terms ; failed, in brief, to secure a purchaser. He claims, however, that the negotiations between the two companies were simply held in abeyance until the trust company could ascertain whether certain neighboring property was also to be had; there were no continuous negotiations between these companies during these two following-years, and the plaintiff never even suggested to Mr. Platt that, in case the trust company ultimately succeeded in securing the neighboring property, it might then offer the defendant $400,000 for the real estate in question. It was really immaterial why or for what reason the trust company failed to come forward in June, 1886, and offer the defendant its price for the property. The price was not offered, and that ended the matter. The parties were never brought together, and the plaintiff was in no sense the procuring cause of the sale which was ultimately made. If the plaintiff, upon the facts of this case, is entitled to a commission, it must be simply upon the ground that his information suggested to the defendant’s officers a possible customer for their property. But, of course, such a position is entirely untenable. The broker must be the procuring cause of the sale. He must produce a customer ready and willing to enter into a contract upon the employer’s terms. Wylie v. Bank, 61 N. Y., 415; Sibbald v. Iron Co., 83 id., 378; White v. Twitchings, 26 Hun, 503. The employer violates no right of the broker in negotiating directly with the proposed customer after the broker has failed to bring such customer to the specified terms, and has abandoned his efforts in that direction ; nor is he liable for a commission, under such circumstances, if his independent negotiation results in a sale. Id. The broker may, as was said by Finch, J., in Sibbald v. Iron Co., supra, “have introduced to each other parties who otherwise would have never-met ; he may have created impressions which, under later or more favorable circumstances, naturally lead to and materially assist in the consummation of a sale; he may have planted the very seeds from which others reap the harvest; but all that gives him no claim.” The plaintiff’s case is clearly within these principles. He endeavored here to sell, and he failed. He told Mr. Platt that he thought he had a customer in the trust company. It'may have been the recollection of this statement which induced the defendant, two years afterwards, to apply directly to the officers of this trust company, and to tell them that, if they wanted the property, they must speak at .once, or it would be sold to some one else. In other words, Platt probably thought be would try to sell the property himself to one who formerly had been suggested as a possible purchaser. This is what it comes, to, and all it comes to.

The suggestion that, during the two years of nonaction, Platt was waiting for the trust company to close its other negotiations, and that in fact both companies were abiding the result of those other negotiations, is entirely without support in the evidence. We have not overlooked the testimony with regard to conversations between the plaintiff and Mr. Wood, the defendant’s treasurer, between June, 1886, and some time in the year 1888. These conversations, however, were clearly inadmissible. Mr. Wood had no authority to bind the defendant, and the conversations in question were not in the line of the treasurer’s duty. They were simply desultory observations, made at casual meetings outside of the company’s office, and were in no sense admissible as part of the res gestee. But, further, even if admissible, they had no probative value with regard to the real issues. The plaintiff says they “ were generally to the effect that a sale would be finally consummated of the United States Company’s property to the Union Trust Company,” and that “Mr. Wood said he hoped that would be the result; that he would be glad to see me (plaintiff) earn so handsome a commission.” Such loose talk did not alter the facts that the plaintiff abandoned all effort in the matter; that he never brought the parties together; that he never procured an offer of $400,000 ; that he was not, to quote the language used in White v. Twitchings, supra, “ the cause of the identical contract of sale;” and that the sale was the result of independent negotiations between the parties, to which they were not moved by any act of the plaintiff. The judgment and order appealed from should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

O’Brien, J., concurs.

Van Brunt, P. J.

I concur. Simply because a broker calls the attention of a particular person to a piece of property as being for sale, it does not give him a lien upon that person in respect to that property for all time to come.


text:
    Angel K. Jorgensen, Pl’ff, v. Flavius S. Squires et al., Def’ts.

      (Supreme Court, General Term, First Department,

      Filed December 16, 1892.)

    N uisance—Cellarway—Charge.
    In an action to recover for personal injuries, the complaint alleged that defendants unlawfully maintained a cellar opening extending more than five feet beyond the street line of said premises into the public sidewalk, which cellar was then covered insecurely with wooden trap doors through the defendant’s negligence, and constituted a nuisance, and that while plaintiff was lawfully upon said trap doors they fell, precipitating the plaintiff into the cellar. Defendants answered denying that they at any time unlawfully maintained a cellar opening extending more than five feet beyond the street line, or that the opening was insecurely covered, or that plaintiff was injured by their negligence. Reid, that, under the pleadings, it was error to charge that the opening was a nuisance per se, and to refuse to charge that the opening, not extending more than five feet beyond the street line, was not a nuisance per se.

    Exceptions ordered to be heard in the first instance at the general term, in an action to recover.damages for personal injuries.

      W. B. Tullís, for pl’ff;

      Douglas A. Levien, Jr., for def’ts,
    ministers, elders, etc.; Robert A. Johnson, for deft Squires.
   Van Brunt, P. J.

The learned counsel for the defendants in his points states that this is an appeal from a judgment against the defendants in favor of the plaintiff, and from an order denying a motion for a new trial, and then states that under the directian of the trial justice the exceptions were ordered to be heard in the first instance at the general term. We have searched the record in vain to find the judgment and notice of appeal, the non-existence of which is probably explained by the fact that the order directing the exceptions to be heard in the first instance at the general term contains the usual provision that the judgment on the verdict in the meantime shall be suspended. We assume that this case comes before the court upon a motion for a new trial, upon the exceptions ordered to be heard in the first instance at the general term, and we will consider the case upon that assumption.

This action was brought to recover damages for personal injuries alleged to have been sustained by the plaintiff’s falling through the wooden doors which covered the cellar steps at the basement of the premises on Third avenue, in the city of New York. The complaint alleged that:

“ Defendants then and there unlawfully maintained, as a part of, and connected with, said premises, a cellar or vault opening extending more than five feet beyond the street line of said premises into the public sidewalk of Third avenue, which cellar or vault was then covered insecurely by wooden trapdoors through the defendants’ negligence, and constituted a "nuisance; and that in September, 1889, while plaintiff was lawfully upon said trapdoors, they fell, through defendants’ negligence, thereby precipitating the plaintiff into the cellar, whereby she sustained injuries, to her damage $5,000.

The defendants, answering, denied that they at any time unlawfully maintained, in connection with said building, a cellar, vault or opening extending more than five feet beyond the street line, or that said vault was covered insecurely with wooden trapdoors through defendants’ negligence, or that the plaintiff was injured through their negligence. It is to be observed that the plaintiff, by the allegations in her -complaint, has alleged the wrongful act to be the maintaining of this vault more than five feet beyond the street line; and that was the main issue presented. The learned court seems to have overlooked this peculiarity of the complaint in his charge to the jury. There was evidence showing almost conclusively that this opening did not extend more than five feet beyond the street line; and although there was some slight evidence upon the part of the plaintiff that it did extend further, the preponderance was overwhelming in favor of the defendants upon that question. But the court did not submit any such question to the jury. It charged the jury, as matter of law, that there was no lawful authority for the making of this cellar way in front of the premises; and that the defendants who maintained this opening were liable if any person was injured by falling into it, without proof of negligence upon the part of defendants; that is, without proof that it was improperly constructed, or improperly or carelessly maintained. In other words, the court charged that the plaintiff was entitled to recover. Exception was taken to that portion of the charge which stated that the entrance was a nuisance per se, and to a refusal to charge, as requested, that the steps, not extending beyond the stoop line more than five feet from the area of the building, were not a nuisance per se. We think, under the pleadings, this was clearly error. Without at all discussing the question which, evidently, the learned court had in mind at the time of making this charge, under the pleadings the maintenance of this opening, if it did not extend more than five feet beyond the street line, was not a nuisance per se. The sole allegation of nuisance was that it did so extend; and that was the issue presented, and none other. Without discussing the other questions in respect to the proof as to damage, in view of the failure to amend the complaint in the manner for which leave was obtained, we think that the error above referred to requires a sustaining of the exceptions, and the ordering of a new trial, with costs to the defendants to abide the event. So ordered.

O’Brien and Barrett, JJ., concur.


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    Martin R. Cook et al., Resp’ts, v. George Berrott et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 16, 1892.)

    1. Sale—Agreement to pay debts of vendor.
    A written agreement was entered into between a debtor and two creditors, whereby the debtor granted, bargained and sold to them his stock, fixtures and accounts, in consideration of their covenant to pay his indebtedness to other creditors, whose names, and the amount due each, were specified in the agreement. Held, that such agreement was an absolute sale, and rendered the two covenanting creditors absolutely liable to the creditors mentioned therein.

      2. Same—-Covenant—Fraud.
    In an action by the creditors against the covenantors on such covenant, the trial judge properly refused to submit to the jury the question whether the defendants were induced to enter into the agreement by misrepresentation as to the value of the assets, no proof of such value having been given.
    8. Same.
    On appeal from orders denying a motion to dismiss a complaint and directing a verdict for plaintiff, the question of the admission of incompetent evidence_ on the trial is immaterial, where such evidence being excluded, sufficient competent evidence remains to establish a prima facie case in plaintiff’s favor.
    Appeal from a judgment entered upon the verdict of a jury, directed by the court, in an action to recover certain moneys originally owing from one Berliner to the plaintiffs, upon the ground that by an instrument executed by him the defendants became personally liable as guarantors and not as assignees for the benefit of creditors.

      Adam K Schalz, for app’lts;

      Richards & Brown (J. Tredwell Richards, of counsel), for resp’ts.
   O’Brien, J.

This action is brought to recover a sum of money originally owing from one George Berliner to plaintiffs, and for the payment of which it was alleged the defendants became liable by virtue of an assumption of such indebtedness by them, pursuant to the terms of a certain indenture in writing, whereby, as claimed by plaintiffs, the said Berliner sold his business, including the entire stock of merchandise, accounts paj'able, and other assets, to the defendants, in consideration of their covenant and agreement with Berliner, and with each of certain creditors, one being the plaintiff's firm, to pay off and discharge in full such indebtedness, at the times and in the manner in such indenture provided. The defendants, by their answer, while admitting the execution of the indenture by themselves as parties with George Berliner, alleged that the same was induced by false representations with respect to the value of the assets made by Berliner, and also took issue with plaintiffs upon the question whether the true construction of the indenture or agreement was an absolute sale by Berliner to the defendants or not, insisting that its true construction was an assignment by Berliner to them for the benefit of creditors.

The first question presented relates to the nature of the indenture. An examination thereof will show that it did not contemplate that the defendants were to take the property of Berliner as trustees, or in a representative capacity, but the instrument, by its terms, provides for an absolute sale, in consideration of certain covenants entered into by the defendants, one of which was to pay the indebtedness due by Berliner to these plaintiffs. This view of an absolute sale was neither destroyed nor affected by evidence introduced relating to the acts of the parties, and the construction which they themselves placed upon the instrument. We think that a reading of the entire record places it beyond doubt that it was a sale bv Berliner of all his property to these defendants, upon an agreement that they should pay to the creditors, whose names, with the amounts due, were specified in the agreement, their respective claims.

Ro serious question is raised as to the execution of the indenture itself, but it is insisted that the plaintiffs, being strangers thereto, were not entitled to the benefit thereof. It was shown, however, that they accepted the covenant made by the defendants in their favor, and in reliance thereon refrained from taking any action against Berliner. The question, therefore, presented, is as to the right of a third person to enforce a promise or covenant made by one party to another for the benefit of such third person. The law upon this question, ever since the case of Lawrence v. Fox, 20 N. Y., 268, must be regarded as settled. And even though we were to assume that the plaintiffs were not to be deemed parties to the indenture, yet, the covenant of the defendants to pay their claim being good as a covenant to Berliner for plaintiffs’ benefit, they would be entitled to enforce the covenant directly against the defendants. Thorp v. Coal Co., 48 N. Y., 257; Arnold v. Nichols, 64 id., 117; Gifford v. Corrigan, 117 id., 257; 27 St. Rep., 233.

At the close of the plaintiff’s case, the defendants made a motion to dismiss the complaint upon the grounds that the evidence was not sufficient, that the defendants were improperly sued, and that they should have been sued in their representative capacity as trustees or assignees. The exception taken to the refusal of the court, we think, has been disposed of by the reference already made to the facts proved in this case and the law. In order to make out a prima facie case, proof of the agreement, of the indebtedness due the plaintiffs, and that they acted thereon by accepting the terms thereof, after notice of the making of such an agreement, would be sufficient to entitle them to recover. The plaintiffs, however, went further, and proved that, subsequent to the making of the instrument, the defendants, in recognition of their liability, conceded the claim of the plaintiffs, and entered into negotiations for the purpose of effecting a settlement thereof. It is true that the defendants objected to certain letters and to portions of the testimony presented by the plaintiffs; but eliminating all these, which we may do for the purpose of passing upon the question raised by the exception to the denial of the motion to dismiss the complaint, we think there was sufficient to justify such refusal Upon such a motion, presenting, as it does, a question of law and not one of fact, it is immaterial for the disposition of such a question whether incompetent evidence was admitted or not, providing that, excluding such incompetent evidence, sufficient remained to establish a prima facie case.

In addition to this motion, however, and after the defendants’ testimony was in and both sides had rested, the court was requested to direct a verdict for the plaintiffs which was done, and to which the defendants did not except. Instead, they made a request to go to the jury on the question of whether the defendants were induced to enter into the agreement or indenture by misrepresentation, which being denied, they excepted. The defendants also moved for a new trial, which motion was denied, and exception taken. Inasmuch, however, as there is no appeal from any order denying the motion for a new trial, and no statement in the case that it contains all the evidence, it is unnecessary for us to consider the questions which would have been raised upon a different record.

Reviewing the evidence as presented, we think the denial by the learned trial judge to submit the question proposed, as to misrepresentation, to the jury was entirely proper, as the case is devoid of any testimony which would support such a conclusion, for even if we were to assume that the evidence was sufficient to establish the claim that representations as to the value of the assets were made by Berliner as an inducement to the defendants to sign the agreement, there was no proof presented as to the actual value of the assets assigned, and this would be fatal to a defense based upon false representations. The other defense alleged, in respect to a settlement between the plaintiffs and Berliner, was not relied upon in the requests made to the judge upon the trial, nor do we regard it as seriously urged upon this appeal; but if it were, it is entirely without support upon the evidence.

The only remaining question is presented by the granting of the plaintiffs’ motion for a direction of the verdict in their favor. As we have already said, no exception was taken to the direction ; but had there been, it would not have availed the defendants. A prima facie case having been made out, as we have shown, for the plaintiffs, and no defense having been made out by the defendants, there was no question to submit to the jury. Much stress is laid by defendants upon the claim that a certain exhibit, “ D,” which was a letter signed “B. & S.,” and written by one Kane, inclosing a draft to plaintiffs, was not admitted. The record does not show that any more was done with reference to this exhibit than to endeavor to have it marked for identification, and no offer to have it admitted as evidence was made. Even though it had been, as shown by its terms, it would in no way have affected the disposition which the trial judge was bound to make of the case. Many exceptions were' taken to the admissibility of letters which were introduced by the plaintiffs; but what we have already said with reference to the consideration of incompetent evidence upon a motion to dismiss a complaint is also applicable here. The decision of the court in directing a verdict for the plaintiffs was a decision upon a question of law, and not upon a question of fact, and the admission of incompetent evidence could have made no difference in the result; for upon the competent evidence it would still have been the duty of the court to make the same decision.

It is only where there is a question of fact in issue, and the incompetent evidence might possibly have affected the mind of the court or jury, that the error is material. Applying this rule, and discarding every piece of evidence in the case to which objection was made by the defendants, there still remained sufficient to establish a prima facie case in plaintiffs’ favor; and no defense ■ thereto having been presented, the direction was proper.

We are of opinion, therefore, that the judgment appealed from . should be affirmed, with costs.

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


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    Catherine O’Callaghan, Res’pt, v. John J. Barrett et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 16, 1892.)

    1. Mortgage—Assignee—Estoppel.
    Where an assignee of a mortgage does not record the assignment or give notice to the mortgagor of its existence, he is estopped from claiming that a payment made in good faith to the mortgagee by the mortgagor should not be credited on the mortgage.
    2. Same—Payment.
    Proof of such payment to the husband of the mortgagee is not sufficient to establish a credit on the mortgage, in the absence of competent testimony showing his agency.
    Appeal from judgment rendered upon the decision of the court at special term in an action to foreclose a mortgage.

      Henry Daily, Jr. {James M. Smith, of counsel), for app’lts ;

      Sullivan & Cromwell {Edward B. Hill, of counsel), for resp’t.
   Van Brunt, P. J.

This action was brought to foreclose a mortgage made by the defendant Barrett to one Ann Pratt, and by her assigned to plaintiff. The defendant Thomas O’Callaghan, Jr., is the owner of the equity of redemption. The answer of defendant O’Callaghan set up a payment of $1,000 beyond the amount allowed by plaintiff, and the question principally litigated upon the trial was whether this payment was or was not made. The assignment from Ann Pratt to plaintiff was made in 1884, though never recorded until February,. 1890. During this interval the defendant, O’Callaghan, in ignorance of the assignment to plaintiff, paid to Ann Pratt interest and part of the principal. The first knowledge that he had of the transfer or assignment of the mortgage would appear to have been just prior to the present action, which was begun in August, 1890. It thus appears that the plaintiff stood by and allowed Ann Pratt to hold herself out as the owner of the bond and mortgage, and to receive payments both of principal and interest from the defendant O'Oallaghan, and has thus estopped herself from claiming that any payments made to Ann Pratt should not be credited upon the bond and mortgage which were made before notice of the assignment.

We agree with the law invoked by the defendant, that where one allows another to have the appearance of ownership of personal property, and third persons, relying upon such appearance act, the real owner, as against such third parties, is estopped, from repudiating the acts of one who has been clothed with the appearance of ownership. We think, therefore, notwithstanding the assignment made by Ann Pratt to the plaintiff, that the latter’s failure to take any steps, either by recording the instrument or bringing home notice to the defendant, O'Callaghan, of her ownership, and allowing Ann Pratt to act as though she were still the owner, would entitle the defendant to have credited as a payment on the bond and mortgage any sum paid to Ann Pratt, the same as though it were paid directly to the plaintiff.

But was the $1,000 paid to Ann Pratt? The question is one of fact. The burden was upon the defendant of showing such payment. It is conceded that the payment of the $1,000 was not made either to the plaintiff or to Ann Pratt directly ; and, in sup-. port of the burden placed upon the defendant, he testified that such payment was made by check to Daniel Pratt, the husband of Ann, and by the husband delivered as part payment on a contract for the purchase of a house by Daniel Pratt from one Moore. It is not claimed that, when this payment was made to the husband, he had possession of the bond and mortgage; nor does defendant claim that he had any direct authority from plaintiff or from Ann Pratt to make any payment on the mortgage to Daniel Pratt. He testified to conversations with plaintiff and Mrs. Pratt subsequent to the giving of the check to the husband, in which, the question of their approval of the payment was discussed. The defendant also testified that Daniel Pratt, at the time of making the contract for the purchase of the house from Moore, requested him to let him have the $1,000, saying that his wife had told defendant’s father to tell him (defendant) to pay him the money; that upon delivering the check he instructed the husband to indorse it upon the bond; and that in response to such request the husband stated that it would be all right, “ that whatever is paid to me is the same as is paid to Ann." Such testimony was neither competent nor binding on Ann Pratt The husband could not, by his own declaration, prove that he was his wife’s agent. Apart, however, from the effect to be given to the admissions or declarations of an agent, the case fails to disclose subsequent competent evidence to prove that. Daniel was the agent of Ann Pratt. Assuming this statement to have been made by Daniel Pratt, there .is no presumption that the husband is the agent for the wife. Smith v. Fellows, 41 N. Y. Super. Ct., 36; Hoffman v. Treadwell, 2 T. & C., 57. In the absence, therefore, of competent testimony showing agency, neither the declarations of the husband, nor his acts in receiving the money, made the payment a payment to his wife.

Upon examining the testimony, it will be found that the defendant’s reliance to support his claim of payment must stand or fall upon the testimony of his father, O’Callaghan, Sr. It is true that there is some other testimony whose tenor might be regarded as supporting the view that the payment was authorized. For instance, the defendant himself testified that Pratt and his wife called upon him, and said they were going to buy a house, and that the defendant owed them $4,250 or $4,000, with which they could buy the house; and his subsequent testimony, that after the contract was signed the husband said to him that he (defendant) was to pay the $1,000 to Moore on the contract; that Ann (meaning his wife) “ told your father this morning to tell you to pay me $1,000, or whatever money was needed on this contract,” which statement the witness claims was verified by his father stating to him that it was all right. ¡Nbtwithstanding such testimony, however, we think, with the learned trial judge, that this evidence of the witness, O’Callaghan, Sr., is the only testimony directly connecting Ann Pratt with the payment prior to its being made. O’Callaghan, Sr., testified that, two or three days before the contract was made between Daniel Pratt and Moore, Ann Pratt told him to tell his son to pay the $1,000 to Pratt; and he further testified that she and the plaintiff afterwards approved it. This testimony was denied by Ann Pratt, and the husband, Daniel, not only denied that anything was said in respect to crediting such payment made to him upon the bond and mortgage at the time when the contract with Moore was made, but disclaimed any authority to receive money on the mortgage, and denied that he ever claimed any. There is thus a direct conflict of testimony, and there is no such great preponderance in favor of defendant as would justify us.in disturbing, under well-settled rules of law, the conclusion of the trial court. It was, as already stated, incumbent upon the defendant to show the payment. His defense was an affirmative one, and it was his duty to support it by a preponderance of evidence. Conceding, therefore, all the defendant claims as to the law, the trial court, upon the conflicting evidence, has found against him upon the fact of the authority of the husband to receive the payment for his wife. There is not presented a case wherein we would be justified in disturbing, upon the record, his conclusions.

In respect to the eighty dollars payment, which was not pleaded, the disposition made thereof by the trial judge was the only proper one that, under the circumstances, could have been made. We are of opinion that the judgment must be affirmed, with costs.

O’Brien and Barrett, JJ., concur.