author: Per Curiam.

text:
    Samuel Adams et al., App’lts, v. Patrick McCann et al., Resp’ts.

      (New York Superior Court, General Term,

      Filed January 5, 1891.)

    Banks—Injunction to restrain payment op check.
    Defendant McCann was a partner with plaintiffs and transferred to them all his interest in the firm assets, which included, as is claimed, a fund in hank standing to his credit. Thereafter he drew a check for such fund to his wife, in payment of an existing debt, and the bank transferred the fund to her account before receiving notice of the transfer to plaintiffs. It did not appear that the wife was guilty of any fraud or bad faith in receiving the check. Held, that, under these circumstances, plaintiffs were not entitled to have the bank restrained from paying the proceeds of the check or the wife from withdrawing such proceeds, and that the cause of action against McCann, if any, was one which he had a right to have tried by jury.
    Appeal from judgment in favor of defendants, dismissing the complaint, with costs.
    The following is the opinion at special term :
    Dugro, J.—The evidence establishes that on April 16, 1885, there was on deposit in the Garfield National Bank, to the credit of Patrick McCann, a balance exceeding $660, which had been derived from, and was an asset of, a partnership business conducted by plaintiffs and Patrick McCann prior to and until the mentioned date; that this balance was, on said date, transferred by Patrick McCann to the plaintiffs, notice of which was given to the bank subsequent to April 18th ; that on the 15th of April, preceding the transfer, the defendant Maria McCann received from Patrick McCann his check, drawn on the defendant bank to her order for $660, in part payment of an existing debt; that on April 18th, this check was deposited in the defendant bank to the credit of Maria McCann, and credited to her account as cash; that the defendants McCann had and kept separate ordinary banking accounts with the bank, making deposits with and drawing checks upon the latter as occasion required.

      The plaintiffs ask that the defendant Maria McCann be perpetually restrained from withdrawing from the bank, and the bank from paying $660, claimed to be the proceeds of the check, and that this sum to the credit of Maria McCann’s account be declared their property, etc.
    As the ordinary relation of banker and depositor existed between the McCanns and the bank, their accounts were subject to the ordinary rules applicable to bankers’ accounts, one of which is that if a check is deposited in the ordinary way of business to the credit of a person’s bank account, and by the bank placed to the credit of the depositor as cash, the effect of the transaction is to make the bank debtor to the depositor for the amount of the • check, and to pass the title to the check to the bank. Jusih ei al. v. National Bank of the Commonwealth, 56 N. Y., 478.
    The bank having received its title to the check prior to the receipt of notice of the transfer by Patrick McCann, has a right to charge it up against the latter’s account.
    The defendant, Maria McCann, can be restrained, as plaintiffs ask, only if it appears that a trust is impressed upon $660 of the amount to her credit in the bank, of which trust she is the trustee for the plaintiffs as cestui que trust. The facts presented by the evidence do not warrant a finding that she has been guilty of any fraud in obtaining the check, or acted in any way other than in good faith, or is other than a bona fide holder of the check for an existing debt; and, with this so, no trust or agency can be held to have been created in plaintiffs’ favor.
    In the. absence .of such a trust or agency, the rule seems to be that it is only to the extent of the interest remaining in the party who committed the fraud that money can be followed as against an innocent party, having a lawful title, founded upon consideration ; and, r£ it has been paid, in the ordinary course of business, either upon a new consideration, or for an existing debt, the right of the party to follow the money is gone. Jusih et al. v. National Bank of the Commonwealth, supra.

    This rule seems indispensable to the safe transaction of commercial business.
    The plaintiffs, in their brief, ask that if judgment cannot be given as prayed for in the complaint, a judgment for $660, the amount of the deposit, should be given against the defendant Patrick McCann, and refer me to § 1207 of the Code, and several authorities, as warranting such a disposition of the case as against him.
    A judgment against this defendant;' cannot be had in this action, as no cause of action, alleged in the complaint, has been proved, nor has the complaint been amended so as to conform to the proof.
    I might also add that if the existence of a cause of action against Patrick McCann has been disclosed by the evidence, it is, if one he has, a right to have passed upon by a jury.
    There should be judgment for the defendants, dismissing the complaint, with costs to the defendants McCann, and costs after notice of trial and before trial to the bank.

      John W. Boothby, for app’lts; Samuel Greenbaum, for resp’ts.
   Per Curiam.

The judgment should be affirmed, with costs, upon the opinion of the trial judge at special term. As to the claim made upon this appeal that the plaintiffs should have had at least a personal judgment against Patrick McCann for the reason that the latter waived a trial by jury, it should be said that the case contains no evidence of any such waiver.

Judgment affirmed, with costs.

Sedgwick, Ch. J., and Freedman, J., concur. .


source: Caselaw Access Project

license: Public Domain

text:
    Valentine Hammann, App’lt, v. Richard Jordan, Resp’t.

      (New York Superior Court, General Term,

      Filed February 4, 1891.)

    1. Party wall—Flues nr wall.
    A party wall agreement was entered into by the parties and plaintiff built a wall upon a portion of each lot, which, however, contained flues for his use which extended two inches beyond the center. Defendant thereafter built on his land, putting up a separate wall and using the party wall only to anchor his wall to it. In an action upon the agreement, Seld, that the wall as built was not a party wall, but was such a departure from the contract as relieved defendant from liability to pay therefor.
    2. Same.
    The fact that defendant was present and acquiesced in or assented to the mode used in building the wall will not deprive him of his rights, where it does not appear that he was aware that flues had been placed therein before proceeding to erect his house.
    3. Same—Evidence.
    In such an action a question put to an architect as to whether it was customary to put flues in party walls is properly excluded.
    (Ingraham, J., dissents.)
    Appeal by plaintiff from judgment entered upon a direction of the court at trial term.

      Jacob F. Miller, for app’lt; A. Britton Havens, for resp’t.
   Per Curiam.

The plaintiff brought the action upon an agreement made by him and defendant. They were respectively the owners of adjoining lots. The agreement witnessed that,

Whereas, the plaintiff was about to erect a wall to stand equally upon and between the premises, the defendant agreed that the plaintiff might erect upon the defendant’s premises the one-half part of the said wall “as a party wall, to be continued and used as such.” The defendant agreed that whenever he should desire to use the party wall in the erection of a building on his lot, he would pay to the plaintiff the sum of $741.16, being one-half of the sum to be expended in the erection of the party wall.

The plaintiff afterward built a wall twelve inches thick, one-half of it being on each lot.

The defendant afterwards built on his lot a house. He did not use the so called party wall for the beams of the house, but next to the party wall built an eight-inch wall, in which the ends of the beams were placed. The use he made of the so called party wall was to anchor the additional wall to it.

The action is brought to recover the sum named in the agreement to be paid by the defendant upon his using the party wall.

To maintain Ms action, it was necessary that the plaintiff should prove that what he built was, within tne meaning of the agreement, a party wall. In the plaintiff’s case it appeared that on the side of the wall toward Ms house he left spaces in the wall to be used as flues by him. These were twenty-two in number, and each eight inches in width. Their depth was such that they went upon the defendant’s lot two inches beyond the center of the wall.

On the trial the position upon which the complaint was dismissed was that it affirmatively appeared that the wall as built by the plaintiff was not a party wall within the meaning of the agreement.

On substantially a similar case when the action was before a former general term, 9 N. Y. Supp., 423; 30 N. Y. State Eep., 249, the court held that the evidence showed that the wall was not capable of substantially similar use by each of the adjoining owners. That decision justifies the dismissal of the complaint on the second trial.

The learned counsel for the appellant argued that there was evidence that while the plaintiff was building, the defendant was present and acquiesced in or assented to the mode that was used in the erection of the wall. There was no proof, however, that the defendant, before proceeding to build Ms house, had been aware that the flues were placed in the wall.

Construing the agreement by ordinary rules, a common meaning must be attributed to the phrase party-wall, it not appearing that the agreement intended any special, local or technical meaning. The common idea of a wall is that' it is a solid structure, and it is reasonable to hold this when the alternative would be to permit the party building, to leave spaces or hollows in the wall to suit what may be his present convenience or supposed future convenience without consultation and the assent of the other party. It would be extremely difficult, if not impossible, to show that the legal rights of the other party would be preserved by making the fact that he would not actually be damaged equivalent to a consent or agreement by Mm that the wall should be built as it was in fact built. It would rarely be the fact that a recess in a wall made without the assent of the other party would be so absolutely without effect on the convenience of the other party that he would not be entitled to a voice in determining where ánd of what shape that recess should be. And it would be impossible to justify the use by-the plaintiff of two inches of the defendant’s land in making flues for his particular purposes.

Washburn’s Easements, etc., 628 (472), states the French law to be, that it prohibits either from making any recess in the wall and that Pardessus considers this as preventing the construction of a safe, a niche, pipe or a chimney flue in such a wall. This would seem to regard the nature of the case.

The counsel for appellant supposed that the defect assumed was a matter of compensation to the defendant, on the ground that the condition of the contract had been substantially performed, and that the defect was technical and unimportant. Glacius v. B lack, 50 N. Y., 148; Sinclair v. Tallmadge, 35 Barb., 602. The proposition and the cases are not to be applied here, for the building of the flues beyond the center line was designed and intentional and substantial. Any intentional departure from the contract prevents a recovery, and what the plaintiff did he did with purpose and design, believing, in mistake, that he was acting within the contract. Phillip v. Gallant, 62 N. Y., 264.

In behalf, of the plaintiff, one of his witnesses, who had been an architect, was asked “Is it customary to build flues in party walls?” On the court’s inquiry as to the purpose of the question, the counsel said that he wanted to show that it was a proper thing to put a flue in a party wall. The question was properly excluded. As it is the general thing that party walls, as they relate to the realty, are constructed under written agreements, the question in effect asked if such written agreements provided for flues in party walls.

The judgment should be affirmed, with costs.

Freedman, J., concurs; Ingraham, J., dissents.


author: Ingraham, J. Sedgwick, Ch. J. (dissenting.)

text:
    Sarah A. Carson, Resp’t, v. Simon Dessau and David Dessau, App’lts.

      (New York Superior Court, General Term,

      Filed February 4, 1891.)

    False imprisonment.
    Plaintiff was arrested for blackmail at the instance of David Dessau, and was convicted of disorderly conduct. In an action for false imprisonment, the only evidence against the defendant Simon was that he was present when the arrest was made, and that just previous thereto he said something to David which plaintiff did not hear. This evidence was contradicted by defendants’ witnesses. Reid, that the court erred in denying a motion to dismiss as against Simon, and in submitting the case to the jury as one for a conspiracy.
    (Sedgwick, Oh. J., dissents.)
    Appeal from judgment entered on verdict of a jury.

      Leon Lewin, for app’lts; L. A. Gould, for resp’t. ?

   Ingraham, J.

The complaint alleged, facts sufficient to constitute a cause of action for false imprisonment.

The counsel for plaintiff stated at the commencement of the trial that the complaint only alleged one cause of action, to wit, for a false imprisonment, and the case was tried throughout as such an action. For the purpose of this appeal, therefore, the cause of action must be considered as an action for false imprisonment

The complaint alleges that plaintiff was arrested and imprisoned on a charge made by David Dessau, who acted on his own behalf and on behalf and at the request and instigation of Simon Dessau.

There was absolutely no evidence to sustain the charge against Simon Dessau. Plaintiff testified that Simon was in the room when she entered. This was contradicted by every other witness in the case and I am inclined to think on the whole evidence, if the verdict as against Simon Dessau depended-upon his presence in the room at the time the plaintiff called, it should be set aside as against the weight of evidence.

But assuming that the plaintiff’s story was not so clearly disproved as to justify a reversal of the judgment as against the weight of evidence, there was no evidence to sustain a finding that Simon instigated or requested the plaintiff’s arrest. According to her testimony, Simon said not a word that was heard during the time plaintiff was in the office. The direction to get an officer was given by David. When the officer came David made the charge and said to the officer: “I want you to arrest that woman for blackmail. She has come here to extort money from me and I don’t owe her any money. I don’t know her; she -is a stranger,” and David accompanied the officer and the plaintiff to a station-house and then renewed the charge to the sergeant

The only act of Simon testified to was that he said a few words to David before the officer was sent for which plaintiff did not hear. Plaintiff was not arrested on a charge of any offense against Simon; he said nothing to the officer, nor to any one about the charge; did not go to the station house; had nothing to do with the imprisonment. He was in the room; heard his father make a charge to the officer that plaintiff had committed an offense against his father and saw them walk off. There was nothing but the merest suspicion that there was something said about the arrest in the few words that Simon spoke to his father, which were not heard so far as appears; Simon might just as well have advised his father not to make the charge as to make it; and that upon such evidence the jury should have found a verdict against Simon satisfies me that in some way they misconceived their duty. For the defense the defendants, the police officer and several other apparently disinterested witnesses positively swear that Simon was not in the office with the plaintiff at all, but was in an adjoining office and had no conversation with his father at the time.

The court in submitting the case to the jury stated that the plaintiff’s claim was, that the defendants, David and Simon Dessau, "Wrongfully, unlawfully and maliciously concerted and conspired together and caused plaintiff’s arrest and imprisonment, and instructed the jury that if from all the circumstances they came to the conclusion that Simon Dessau was a party to the arrest and had conspired with David Dessau, that the verdict should be against both defendants. The defendants excepted to this charge as to Simon Dessau being a party to the conspiracy. There was nothing said as to what the jury should do if they found there was no conspiracy or under what circumstances David Dessau would then be held liable.

The error, therefore, in refusing to dismiss the complaint as to Simon Dessau and submitting the case to the jury as one for a conspiracy between the defendants, as to which there was not a particle of evidence, was an error that affected both defendants, for it might well be; that if the jury had been instructed that there was no evidence of a conspiracy they would not have found the express malice which was necesssary to justify the allowance of punitive damages, and the amount of the verdict shows that the jury must have awarded punitive damages as it is beyond any reasonable allowance for compensation.

This error was further emphasized, by the ruling of the court upon several requests to charge, and considering that the verdict under the charge could only have been based upon a finding of a conspiracy which was without evidence to support it, the size of the verdict in face of the fact that the arrest of the plaintiff was made because of an attempt to collect a claim from one of the defendants by a threat to publish a statement against him in a newspaper, which would have been a felony if the threat had been in writing, and that plaintiff was convicted of disorderly conduct which would have justified the arrest if a warrant had been obtained, it would appear that the jury intended to punish the defendant Simon Dessau for his prior conduct rather than to redress the wrong done the plaintiff, and that justice requires that there should be a new trial.

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

Freedman, J., concurs.

Sedgwick, Ch. J. (dissenting.)

In my judgment there was evidence to support the verdict against Simon Dessau and David Dessau. The rule seems to be correct as given in 3 Gr. Ev., 41. It is that mere bodily presence, without an attempt to prevent a crime, though it will not of itself constitute guilty participation, is evidence from which a jury may infer assent and concurrence. The note 5 to the section cites from Brown v. Perkins, 1 Allen, 98, that “ proof that a person is present at the commission of a trespass without disapproving it or opposing it, is evidence from which, in connection with other circumstances, it is comoetent for the jury to infer that he assented thereto, lent to it his countenance and approval, and was thereby aiding and abetting the same.”

There are several circumstances beside that of mere presence, that enabled the jury to determine that David Dessau assented to and concurred with Simon in causing the plaintiff’s arrest. One of them was that in his presence, with Ms knowledge, Ms clerk was sent to find the policeman that made the arrest. A permission to use an agency that he controlled was evidence for the jury as to assent to the purpose for which it was used.

The jury were at liberty to find the plaintiff’s testimony true in the face of its contradiction by the defendants. The jury might have found for instance that just before David Dessau sent for the policeman, he said something in a whisper to Simon. Assuming that this might be of itself no proof against Simon yet when Simon denied that there was any such whispered conversation, the jury could find that the reason for the concealment of the fact was that, if the truth had been told, it would have appeared that Simon encouraged in that conversation the arrest. Similar considerations are connected with the rest of defendant Simon’s testimony which the jury discredited.

I think the judgment should be affirmed, with costs.

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


author: Ingraham, J.

text:
    Israel J. Merritt, Resp’t, v. The American Dock & Trust Co., App’lt.

      (New York Superior Court, General Term,

      Filed February 4, 1891.)

    Services—Implied contract to pat por voluntary.
    Defendant’s warehouse having caught Are, plaintiff sent his boats, which he kept for that purpose, to aid in extinguising the Are. On that evening he was told to remove the boats, but the following day, the Are having again broken out, he was regularly employed to extinguish it. Defendant was insured, and his warehouse contained goods of other persons. Held, that the rule that where a person renders services for another, and the other stands by and accepts the efforts of the Arst person, the law will infer a promise to pay a reasonable sum for such service was not applicable to the case ; that there was no reason why defendant should not have supposed that the boats were sent by one of the other parties interested in the property, and that defendant was under no implied obligation to pay for the voluntary services so performed.
    Appeal from judgment entered on verdict of the jury.

      William L. Mullen, for app’lt; Henry D. Hotchkiss, for resp’t.
   Ingraham, J.

Thisaction is brought to recover for work and services rendered in endeavoring to extinguish a fire, whereby defendants’ warehouse was destroyed, from the 20th to the 23d of January, 1886, both inclusive.

It appeared that the plaintiff was the owner of certain steamboats, kept for the purpose of rendering assistance to disabled vessels or extinguishing fires, and that the captains of two of such steamboats, seeing the defendants’ warehouse in ñames on the 20th of January, 1886, proceeded to the docks adjoining the warehouse and endeavored to extinguish the fire.

There is no claim that there was any express request by the defendants to the plaintiff to render such service on the 20th of January. It appeared that on the evening of the 20th of January the agents of the plaintiff were requested to withdraw their boats by one of the officers of the defendants, and that during the time that the plaintiff’s boats were present, assisting in putting out the fire, that one or more officers of the company were present. The plaintiff also produced evidence tending to show that on the following day, the fire having broken out afresh, one of the defendants’ officers told a police officer to request the plaintiff to send back the boats; that such request was communicated to the plaintiff’s agents, and that in response thereto the boats returned on the 21st and rendered service until the 23d. The giving of such an order was denied by defendants; but I am inclined to think that the evidence was sufficient to sustain a verdict for the plaintiff, if they believed the testimony of plaintiff’s witnesses, for the reasonable value of the services rendered on the 21st and on the subsequent days.

After the plaintiff had given his testimony, the defendants moved to dismiss the complaint, so far as the services are alleged to have been performed on the 20th of January, 1886, for the reason that there was no pretense made that the plaintiff on that occasion was employed by defendants, or even requested by defendants to do any work.

That motion was denied. The court held that the fact that the •defendants stood by and received the assistance offered by plaintiff without any warning to him that they declined it, or that they would not compensate him for it according to what was fair and just, carried with it the implication of an intent on the part of the •defendants to pay what was fair and right for the services rendered.

This motion was renewed at the end of the testimony and .again denied. The court charged the jury: “ That whenever one man, without the invitation of another, renders services or makes •an offer to render service to another, and the other stands by and accepts the efforts of the first person, and uses whatever service his actions bestow upon them, the law infers a promise, upon the part of the man who has received the benefit, to pay for that benefit such sum as is fair and reasonable,” and directed the jury to apply this rule of law to this case.

We think that the rule stated by the learned judge had no application to the case at bar. The defendants, it is true, were the •owners of the warehouse that was in flames. It appears, however, that they were largely insured, and that the warehouse was filled with goods belonging to others. Thus, it would appear that the insurance companies, and those having goods on storage with the •defendants, were equally interested with the defendants in putting out the fire. There was no more reason for the defendants to suppose that the services of the plaintiff were rendered for their benefit than for the benefit of the insurance companies or for the benefit of those having goods on storage. The defendants were not therefore placed in such a position that they were bound to notify the plaintiff, as soon as they were aware of the fact that he was endeavoring to put out the fire, that-'he must stop or the defendants would not be responsible.

The defendants had not employed the plaintiff, and there was no reason why the defendants should not have supposed that the boats had been sent by one of the other parties interested in the property.

The defendants did not avail themselves of the benefit of any ■of the services rendered by the plaintiff. They did not accept such services. All that can be said is that they did not object when they saw others joining with their agents in endeavoring to put out the fire. And I can see no ground upon which it can be held that, under such circumstances, the owners of property being destroyed by fire are under any implied obligation to pay all those who voluntarily appeared and aided in putting out the fire or saving the property.

The defendants excepted to the charge of the court, which states in substance that - if by legal inference a contract is presumed, the plaintiff is entitled to recover, and I think that exception raises the question. It is true that the jury might have found an express employment on the 21st; but, in the way the •case was submitted to them, they might have also found that, although there was no express employment on the 21st, the defendants were liable because they did not dissent, or refuse to allow plaintiff to throw water upon the fire.

We think, therefore, the judgment appealed from should be reversed and a new trial ordered, with costs to appellant to abide the event.

Freedman", J., concurs; Sedgwick, Oh. J., concurs in result.


text:
    Charles Putzel, Rec’r, Resp’t, v. Richard L. Schulhoff et al., App’lts.

      (New York Superior Court, General Term,

      Filed February 4, 1891.)

    Creditor's action—Destruction of assigned property.
    A complaint which seeks to set aside as fraudulent a bill of sale of property that had been "absolutely destroyed before the commencement of the action, and the setting aside of which could give the creditor no advantage, states no equitable cause of action.
    Appeal from judgment entered on decision of the special term,

      Stephen G. Baldwin, for app’lt; William King Hall, for resp’t.
   Ingraham, J.

The action was commenced by the plaintiff as receiver of the property of the defendant, Bichard L. Schulhof, appointed in supplemental proceedings against the said defendant, to set aside a general assignment for the benefit of creditors, made by the said defendant to defendant Loew, and certain transfers of a portion of the assigned property by Loew to the defendant Kraus and by Kraus to defendant Clara Schulhof as fraudulent. ■

The relief demanded was that the assignment be declared void; that the defendants be adjudged to account for all the property received by them, and that the plaintiff be authorized to pay out of the proceeds of the property the judgment of the creditors at whose suit he was appointed and the costs of this action, and to hold the balance subject to the order of the court.

The defendant Loew failed to answer. The other defendants answered, denying the fraud.

The court found that the assignment by Bichard L. Schulhof to Loew was made with the intent to hinder, delay and defraud the creditors' of said Bichard L. Schulhof; that there was no actual change of possession of the property assigned to Loew, except of one sum of $300, and that Bichard L. Schulhof remained-in possession and had control of the assigned property until the same was destroyed by fire in March, 1887. That there was no consideration for the bill of sale of the property by Loew to Kraus, or for the bill of sale by Kraus to Clara Schulhof. That none of the property pretended to be assigned by the said bills of sale were ever in the possession or under the control of said Kraus or said Clara Schulhof; that the value of the property that was assigned to Loew and included in the bills of sale amounted to more than sufficient to satisfy the claims of the plaintiff, and as conclusion of law that the assignment to Loew was void; that the said bills of sale were fraudulent and void and that plaintiff is entitled to recover a money judgment against all the defendants for the amount of the judgment recovered by the creditors at- whose suit he was appointed, with costs, and judgment in accordance with these conclusions of law was duly entered.

The evidence was sufficient to sustain the finding that the assignment by Schulhof to Loew was fraudulent and void, and so far as the judgment affects Eichard L. Schulhof and Loew the judgment was right and it should be affirmed, with costs.

I do not think, however, that the defendants Kraus and Clara Schulhof are, upon the facts found, liable to pay to the plaintiff the amount. None of the judgment debtor’s goods ever came into their possession or control Neither of them received any portion of the judgment debtor’s property or its proceeds, but according to the facts as found by the trial judge, the property remained in the possession of the assignor until it was destroyed by fire. Neither of these defendants, therefore, have received any of the debtor’s property or its proceeds.

The jurisdiction of courts of equity in an action of this character arises from the fact that property of the judgment debtor, or its proceeds, applicable to the payment of his debts, is, by reason of some fraudulent devise or transfer, placed beyond the reach of an execution to enforce the judgment, or from the nature of the property itself the ordinary legal remedies will afford the creditor no relief; but where it appears that at the time of the commencement of the equitable action there is no such property of the judgment debtor nor the proceeds of any such property in existence, there is no necessity for the intervention of a court of equity to enforce the creditors’ rights and the plaintiff has, therefore, no cause of action in equity. The complaint which seeks to •set aside as fraudulent a bill of sale of property that had been absolutely destroyed before the commencement of the action, and the setting aside of which could give the creditor no advantage, -states no equitable cause of action.

I think, therefore, that, on the facts found, there was no cause •of action against the defendants Kraus and Clara Schulhof, and as to those defendants the judgment should be reversed and a new trial ordered, with costs to the defendants to abide the event.

Sedgwick, Ch. J., and Freedman, J., concur.


author: Freedman, J. Ingraham, J. (dissenting.)

text:
    Mary Lynch, Resp’t, v. The Third Avenue R. R. Co., App’lt.

      (New York Superior Court, General Term,

      Filed February 4, 1891.)

    Negligence—Evidence.
    In an action for injuries caused by negligence, the only allegation as to the character of the injury was that plaintiff “sustained serious damage to her person and property.” Evidence was admitted, under objection, as .to the permanent character of the injury. Held, that the exception to the admission of the evidence was not of sufficient importance to call for reversal.
    (Ingbaham, J., dissents.)
    Appeal from judgment entered upon the verdict of a jury, and .from order denying defendant’s motion for a new trial.

      William N. Cohen, for app’lt; Henry W. Bates, for resp’t.
   Freedman, J.

The action was brought to recover damages for personal injuries sustained by the plaintiff in attempting to •get on board of one of the cars of the defendant Upon the testimony of the plaintiff the case was one for the jury, and the trial judge properly refused to dismiss the complaint or to direct a verdict. There is no exception to the charge, or to any refusal to-charge otherwise. None of the exceptions taken to the admission or exclusion of evidence is, under all the circumstances, of sufficient importance to call for reversal, and upon the whole case no valid reason appears for disturbing the verdict.

The judgment and order should be affirmed, with costs.

Sedgwick, Ch. J., concurs.

Ingraham, J. (dissenting.)

I think the objection to the question asked Dr. Jennings, the medical expert called for the plaintiff, as to the permanent character of the injury should have been sustained.

The only allegation in the complaint as to the character of the injury is that plaintiff “ sustained serious damage to her person and property.” There is no allegation that the injury caused pain and suffering or that the injury was permanent or that she was at the time of the commencement of the action suffering from the effects of the injury. No fact is alleged from which the inference can be drawn that there was any permanent impairment of her physical condition.

The objection to the question was that it was not pleaded in the complaint. That objection was overruled and defendant excepted.

It cannot be said that permanent or progressive paralysis is the necessary or usual result of such an injury as is described in the complaint, and the complaint does not allege that such a result followed from the injury or such a disease was caused by the act complained of.

It is the damage sustained before the commencement of the-action which the plaintiff alleges amounted to $5,000, and such damage is alleged to have been caused by the injury to her person and property, and because she “was obliged to and did incur liability for surgical and other treatment and attendance in seeking to restore herself of her injury."

There is not the slightest indication given to the defendant by these allegations of the complaint that the injury caused by the act complained of was of such a nature as to interfere with the future use by the plaintiff of her physical faculties, and it left the defendant unprepared to meet the proof offered to sustain such an issue.

General damage is defined as that “ which necessarily and by implication of law result from the act or default complained of: Special damages such as arise directly but not necessarily or by implication of law from the act or default complained of.” Bouvier’s Law Dictionary, 467.

In Chitty on ¡Pleading, yol. 1, p. 428, general damages are defined as “ such as the law implies or presumes to have accrued from the wrong complained of; special damages are such as really took place and are not implied by law.”

In 2nd Greenleaf on Evidence, § 254, it is said: “ Those which necessarily result are termed general damages, being shown under the ad damnum or general allegation of damages at the end of the declaration, for the defendant must be presumed to be aware of the necessary consequences of his conduct, and, therefore, cannot be taken by surprise in the proof of them. * * * But where the damages though the natural consequences of the act complained of are not the necessary result of it, they are, however, special damages which the law does not imply and, therefore, in order to prevent a surprise upon the defendant they must be particularly specified in the declaration or the plaintiff will not be permitted to give evidence of them at the trial.”

The distinction between special and general damages in cases of this character is stated in Gumb v. Twenty-third Street R. R. Co., 114 N. Y., 414; 23 N. Y. State Rep., 748, “ when a plaintiff alleges that his person has been injured and proves the allegation, the law implies damage and he may recover such as reasonably flow from the injury (which are called general damages), under a general allegation that damages were sustained, but if he seeks to recover damages from consequences which do not necessarily and immediately flow from the injury (which are called special damages), he must allege the special damages which he seeks to recover.”

Judge Smith in Stevens v. Rodger Co., 25 Hun, 54, says: “The general rule is that special damages, that is such as although the natural are not the necessary result of the act complained of and consequently are not implied by the law, must be particularly stated in the complaint in order to prevent a surprise upon the defendant, or the plaintiff will not be permitted to give evidence of them at the trial.” See, also, Armstrong v. Percy, 5 Wend., 538. It appears from these authorities that the damages that may be proved under the general allegation of damages are such as are implied by law and that the law implies only such as necessarily result from the act complained of. It is not enough that the damage sought to be proved may directly result from the injury, but the damage must be the necessary result, so that such result can be implied by law.

I do not think that the necessary result of a person being dragged behind a street car, which causes serious damage to his person and property, is a permanent injury to the person, or that from such an act the law could imply such permanent injury. It would of course be different if the complaint alleged that the act caused the loss of a limb or another injury of that character, for in that case it would necessarily follow that the loss of the limb would be permanent.

I think, therefore, that the judgment must be reversed and a, new trial ordered, with costs to abide the event.

Judgment and order affirmed, with costs.


text:
    Valentine Hammann, Resp’t, v. Richard Jordan, App’lt.

      (New York Superior Court, General Term,

      Filed February 13, 1891.)

    Costs—Extra allowance.
    The action was for a money demand and the defendant interposed a counterclaim. On the trial the complaint was dismissed. Reid, that plaintifE was not entitled to an extra allowance on the amount of the counterclaim.
    Appeal by defendant from so much of a judgment dismissing a complaint as grants an additional allowance to the plaintiff, computed upon the amount of a counterclaim.

      Havens & Beebe, for app’lt; Jacob F. Miller, for resp’h
   Per Curiam.

The plaintiff not having succeeded in the action, which was for a money demand, is not entitled to an additional allowance, nor was there judgment in his favor on the counterclaim. Code, §§. 3228, 3234.

The part of the judgment appealed from by defendant is reversed.

Sedgwick, Oh. J., Freedman and Ingraham, JJ., concur.


text:
    James P. Kernochan et al., Resp’ts, v. The New York Elevated R. R. Co. et al., App’lts.

      (New York Superior Court, General Term,

      Filed February 13, 1891.)

    1. Railroads—Elevated—Evidence.
    An objection that the evidence is incompetent does not require the exclusion of testimony as to what would have been the rental and fee value of the premises had the railway not been built.
    3. Same.
    After giving his opinion of the fee value and rental value, a witness was asked on cross-examination if he had based his opinion in part on the possibility of the building being used for offices, and replied that he had. Reid, that a motion to strike out his testimony on the ground that it was placed in part on conjecture or possibility was properly denied, as it appeared that he based his opinion on the uses to which the building could be adapted, and among them its use for offices.
    Appeal by defendants from judgment entered upon conclusion ■and finding made by judge at special term.

      Samuel Blythe Rogers, for app’lts; G. Willett Yan Nest, for resp’ts.
   Per Curiam.

The action was of an equitable character to restrain the defendant, from maintaining railway front of plaintiff’s premises and for damages.

The learned counsel argues that there was error below in allowing evidence of what would have been the “ rental and fee values ” of this property, had the railway not been built.

The only ground stated for the exclusion of the testimony was that it was incompetent. In McGean v. Manhattan R. Co., 117 N. Y., 219; 27 N. Y. State Rep., 337, it was held that the statement of such a ground did not require the exclusion of such testimony.

The witness oil this point having testified as to his opinion of the fee value and rental value, was asked, on cross-examination for the defendants, if he had based his opinion in part upon the possibility of the building being used for offices. The witness replied he had. The defendants then moved to strike out the testimony because it was placed in part upon conjecture or a possibility. The motion was properly denied, because the substance of the witness’ testimony was that he based his opinion upon the uses to which the building could be adapted, and among them its use for offices.

The counsel for defendants asked the court to find, as conclusion of law, that no damages can be allowed on the ground that the premises described in the complaint might, at some future time, be applied to use for offices, and also that plaintiff can recover no damages for a general deterioration in value of the neighborhood of the premises and that the plaintiffs have no cause-of action for any injuries caused by the general presence and operation of the elevated railroad in Pearl street, but only for that portion of the damage, if any, which is caused by that portion of' the'structure which is immediately in front of the premises. In each instance the court, under defendant’s exception, refused to-find as asked. Whatever may have been the merits of the requests considered as general propositions of law, the refusals were not detrimental to the defendants. An examination of the findings made by the court upon which it based the finding and the award of damage shows that no damages were given by reason of any matter embraced in the requests.

The other questions raised by the appeal have been determined in principle by former decisions and it is not necessary to particularize any of them.

Judgment affirmed, with costs.

Sedgwick, Ch. J., and Freedman, J., concur.


author: Brady, J. Daniels, J.

text:
    The Union Insurance Co. of Phhiladelphia et al., Resp’ts., v. The Central Trust Co. of New York et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    Arbitration—Deposit as security—Revocation.
    A submission to arbitration contained a provision that security satisfactory to the parties who are plaintiffs in this action should be deposited with the Central Trust Co. to secure the payment and satisfaction of any award in favor of said parties against D., in accordance with any judgment that may be entered on such award. After several hearings before the arbitrators, D. revoked the arbitration agreement, and the proceedings thereunder were abandoned. In an action brought by plaintiffs to recover the costs and expenses incurred by them in such proceedings, Held, that there was no misjoinder of parties plaintiff, nor of causes of action; that the provision as to security, although contained in the arbitration agreement, was really an instrument collateral to such agreement, and that the action could be maintained under § 2384 of the Code.
    Appeal from the interlocutory judgment overruling demurrers to the complaint.
    Action to enjoin and restrain any disposition by the defendants of certain securities of the value of $50,000, deposited by the defendant, the Continental Insurance Company, with the defendant, the Central Trust Company, under an agreement for submission to arbitration, made between the two plaintiff insurance companies, the defendant the Continental Insurance Company and one Lorenzo Dimick, by which James E. Carpenter and John R. Reed were appointed arbitrators and directed to appoint a third arbitrator or umpire.
    The following is the opinion at special term:
    Van Brent, P. J. This action was brought to determine the rights and interests of the parties in respect to a certain fund deposited with the defendant, the Central Tmst Company of the city of New York, under and pursuant to a certain arbitration agreement, and to enjoin the disposition of said fund pending the action.
    The complaint alleges that on or about the 14th of October, 1885, the plaintiffs entered into a certain submission to arbitration with the defendant, the Continental Insurance Co. of the city of New York, and one Lorenzo Dimick. This agreement of arbitration after reciting that controversies were existing and pending between the parties of the first and second parts, viz., the plaintiffs, and the parties of the third and fourth parts, viz., the Continental Insurance Co. and said Dimick, arising chiefly out of the transactions and dealings of said Dimick; and that certain civil actions and suits were pending between the said companies and the said Dimick; appointed as arbitrators one Reed, of Philadelphia, and one Carpenter, of New York, with a third arbitrator to be selected, to adjust the differences mentioned in said agreement of arbitration. It was further provided that the arbitrators should select the third arbitrator on the execution and delivery of the agreement of arbitration. The subjects upon which the arbitrators were to act were thereupon stated in the agreement and a provision made that judgment might be rendered upon the award in the supreme court of the state of New York. It was further provided that neither of the parties should have the right to revoke the submission. The compensation of the arbitrators and expenses of witnesses were also provided for. The agreement also contained the following clause: “ It is further agreed that at or before the execution and delivery of this agreement there shall be deposited with the Central Trust Co. of the city of New York security satisfactory to the parties of the first and second parts to the amount of $50,000, to secure the payment, performance and satisfaction of any award in favor of the said parties of the first and second parts or either of them that may be made against said Dimick in said arbitration by said arbitrators or a majority of them, payment and satisfaction of said award up to the said amount of $50,000 to be paid upon demand by the Central Trust Co. of New York in aecordwith any judgment that may be entered upon such award.” The complaint further alleged that the arbitrators named in the agreement selected as the third arbitrator Stephen P. Nash of New York; that Dimick died in February, 1888, leaving a last will and testament devising all his property to his wife, Kate E. Dimick, who was duly appointed the executrix thereof ; that on or about the 13th of October, and before the execution and delivery of said submission, the defendant the Continental Insurance Co., with the approval and procurement of said Dimick, and in conformity to the terms of the submission, deposited with the defendant, The Central Trust Company, 500 shares of the capital stock of the New York & Harlem E. E. Co., to be held by said company in accordance with the terms of said submission. The said Trust Company signed and endorsed upon said agreement the following receipt:
    “New York, October 13,1885.
    “Eeceived 500 shares of the capital stock of the New York & Harlem Railroad Company, to be held in accordance with the terms of the above submission.
    “ Central Trust Co., of New York,
    “ Gr. Sherman, Vice Pres.”

    The complaint further alleges that thereafter arid from the 15th until about the 18th of October, the 'plaintiffs and the said Continental Ins. Co. and Dimick proceeded under_ said submission before the arbitrators, and that the plaintiffs have always as parties to said submission duly kept and performed and in all respects complied with all the provisions and covenants of every nature on their part to be kept and performed contained in the said submission; that on the 18th of October Dimick served upon the arbitrators a revocation of said submission to arbitration; that the plaintiffs have incurred costs and ^expenses in preparing for said arbitration and the conducting of the proceedings therein at the time of such revocation in excess of the sum of $50,000; that in December, 1889, the plaintiff duly demanded from the Continental Insurance Company, The Central Trust Co. and the said Kate B. Dimick, executrix, etc., payment of said sum of $50,000 out of the security so deposited as aforesaid, which security then and at all times therein mentioned was of far greater value than $50,000, which payment was refused. ■
    The complaint contains the further allegation that the defendants, The Continental Ins. Co. and Dimick, claimed an interest in said stock and its proceeds adverse to the plaintiffs, and relief was thereupon asked praying that the defendants and each of them might be enjoined until the trial and decision of the action from selling or disposing of this security, and that it might be adjudged and decreed that the said stock may be sold and the rights and interests of the parties therein be settled, and the plaintiffs be paid out of the proceeds the amount of their costs and expenses incurred and damages suffered as aforesaid and for such other relief as might be just.
    To this complaint the defendants, the Continental Insurance Company and the Central Trust Company, separately demurred upon the grounds: First, that there is a misjoinder of parties plaintiff, in that an alleged cause of action in favor of the Union Insurance Company has been joined in the same action with a distinct alleged cause of action in favor of the plaintiff, the Insuranee Company of the State of Pennsylvania. Second, that causes of action have been improperly united, in that the alleged cause of action in favor of the Union Insurance Company has been united in the same complaint and action with a distinct alleged cause of action in favor of the plaintiff, the Insurance Company of the State of Pennsylvania. Third, that the complaint does not state facts sufficient to constitute a cause of action. Fourth, that the complaint does not state facts sufficient to constitute a cause of action against the demurring defendant.
    In the disposition of these demurrers we will consider first the ground of demurrer that there is a misjoinder of parties plaintiff. It seems apparent that this objection is not well taken. The provisions of § 446 of the Code are that all persons having an interest in the subject of the action and in obtaining the judgment demanded may be joined as plaintiffs, except as otherwise expressly prescribed in the act. Section 448 provides as follows: “ Of the parties to the action those who are united in interest must be joined as plaintiffs or defendants except as otherwise expressly prescribed in this act But if the consent of any one who ought to be joined as plaintiff cannot be obtained, he may be made a defendant, the reason therefor being stated in the complaint.”
    It seems to be clear that if there is any right to be enforced in respect to these funds in favor of either of the parties of the first or second parts, both are interested therein, and both are necessary parties to the action, and both may claim affirmative judgment. The subject matter of the action is the $50,000, and this deposit was made for the purpose of securing payment, performance and satisfaction of any award in favor of the parties of the first and second parts, or either of them. Whatever interest they had in this security was joint until by the decision of the arbitrators it appeared that either one or both of them had no interest therein.
    It would appear, therefore, that this deposit having been made as security to these plaintiffs, that if there were any rights to be enforced against this fund for the purpose of meeting their expenses and the expenses of the arbitrators incurred prior to the revocation, this interest was necessarily joint.
    We think, therefore, that it is clear that there was no misjoinder of parties plaintiff.
    The views expressed in regard to the first ground of demurrer seem to dispose of the second ground, because there is no separate cause of action alleged in favor of these two plaintiffs. Their cause of action is joint, because they are jointly interested in the fund, and one of these parties would have no right .to exhaust the fund for the payment of its expenses, leaving the other without any recourse against a security which had been given to it in the same manner. It was absolutely necessary that the rights of these parties should be adjudicated in one action, and that the proportion which each was entitled to recover out of the fund should be settled in the one action, for the reason that the deposit was a joint security, and furthermore because it was under a single agreement.
    This brings us to the next two grounds of demurrer, that the complaint does not state facts sufficient to constitute a cause of action either generally or against the particular demurring defendant In view of the decision which has been made upon the revocation of the arbitration by Dimick, notwithstanding the agreement not to revoke, this question must be determined upon the basis that the agreement to arbitrate was lawfully revoked.
    Considerable discussion has been entered into by the counsel on either side as to what were the rights and liabilities under such circumstances both under the Eevised Statutes and under the Code. We will only refer to the provisions of the Code, which seem to entirely dispose of the question at issue.
    Section 2384 is as follows:

      Liability of Party who Revokes.

    Sec. 2384. Where a party revokes a submission made either as prescribed in this title or otherwise, any other party to the submission may maintain an action against him, and also against his sureties, if any, upon the submission, or any instrument collateral thereto, in which action the plaintiff may recover all the costs and other expenses and all the damages which he has incurred in preparing for the arbitration and in conducting the proceedings to the time of the revocation. Either of the arbitrators may recover in an action against the revoking party his reasonable costs and expenses.
    Therefore, by this provision any of the other parties to this submission in consequence of the revocation by Dimick had the right to maintain an action against him, and also against his sureties, if any, upon the submission or any instrument collateral thereto to recover their costs and expenses.
    It is alleged upon the part of the Continental Insurance Company that they were not the sureties of Dimick, and, therefore, the action could not be maintained against them; and that the cause of action against both defendants fails because by the special covenant in the submission the Continental Insurance Company, by agreement with Dimick, had paid the fund in question, not to. secure the submission, but to provide for the. payment, performance and satisfaction by Dimick of any award against him, and that the fund should be available to the plaintiffs only in payment of any judgment that might be entered thereon in their favor.
    We think that the provisions of the section referred to expressly gives a right of action under the circumstances presented in this case. It is true that neither the Continential Insurance Company nor the Central Trust Company were sureties for Dimick upon this arbitration. It is also true that by the provisions of the abitration agreement it was provided that this $50,000 should be deposited to secure the payment, performance and satisfaction of any award in favor of the plaintiffs or either of them that might be made against Dimick in the arbitration, and that payment and satisfaction of this award up to the amount of $50,000 should be made upon demand by the Central Trust Company in accordance with any judgment that might be entered upon such award. If the question of the right to maintain this action depended upon the strict words which have been quoted, undoubtedly no claim against this fund would have arisen by a revocation of the submission to arbitration.
    But the liabilities of parties to such an arbitration, or their sureties, or arising under instruments collateral to the agreement to arbitrate in case of a revocation, is determined by the statute; which provides that in case of' a revocation, the other party may recover his expenses, etc., against the revoking party, or his sureties or upon any instrument collateral to the agreement to arbitrate. ¡Now it seems to be plain that the agreement respecting this deposit, although incorporated in the agreement to arbitrate, was really an instrument collateral to such agreement. And it was by reason of the provisions of this collateral agreement that the fund in question sprang into existence.
    The mere fact that it was incorporated in the same instrument as the agreement to arbitrate makes this deposit and the agreement under which it was deposited no less collateral to the agreement to arbitrate. It is an agreement made for the benefit of the plaintiffs and to secure them. The fund is brought into existence in pursuance of that agreement, being furnished by the Continental Insurance Company according to an agreement with Dimick. It is, therefore, the product of an instrument collateral to the agreement to arbitrate.
    Suppose there had been an undertaking upon the part of the Continental Insurance Company, on behalf of Dimick, to deposit this money upon a separate paper and conditioned precisely the same as the agreement now under consideration. Could there be any doubt but that it would be an instrument collateral to the agreement to submit within the language of the Code ? It seems to me clearly not; and that all the confusion in regard to this question has arisen from the fact that the collateral instrument is incorporated in the agreement to submit. But, as we have already seen, that fact in no way changes the relations of the parties. It is an undertaking independent of the agreement to arbitrate to secure the award, and such an instrument comes clearly within the definitions of the Code as collateral to the submission. ¡Now, this $50,000 which is in the hands of the Central Trust Company is the product of this agreement. It was deposited to secure this award, and the rights of the parties are to be determined by the collateral instrument out of which the deposit sprung, interpreted by the liabilities provided for by the section of the Code already cited.
    Although the collateral agreement to secure the performance of the award by Dimick contained no express provision such as would entail the obligation to pay the expenses of the award, the law has stated that where any such obligation is entered into,_ the obligoi', in case of a revocation of the submission, becomes liable to pay the expenses of the party who is not at fault, and the contract between the parties is to be construed in view of the provisions of the statutes governing such instruments.
    It seems to me, therefore, that this action is upon an instrument collateral to the submission and the fund brought into existence thereby, which fund was to be the surety for the perform anee by Dimick of any award which might be rendered against him.
    The demurrer should be overruled with leave to withdraw the demurrer and answer on payment of costs.

      John Notman and TFm. Allen Butler, for app’lts; Joseph H. Choate and Tredwell Cleveland, for resp’ts.
   Brady, J.

In this case the elaborate" opinion of the presiding justice delivered upon the decision of this controversy before him covers all the points presented and needs no elaboration.

The serious questions at first blush relate to that part of the agreement providing for the deposit of $50,000 as security for the' performance of any award made against Dimick, and the construction to be given to § 2384 of the Code in connection with it.

It is true that the clause mentioned provides in terms for the award to be made “ in said arbitration,” payable by the Central Trust Company “ in accordance with any judgment that may be entered upon such awards,” which is supposed to limit the right of the plaintiffs under the agreement to awards only. The fallacy of this view consists in disregarding the provisions of the section named, which were a part of the law of the state when the agreement was entered into and which were intended to apply to such agreements, in justice to the parties making them, so that the capricious, or ill-advised or unreliable litigant should not be permitted to indulge in any of these follies or traits and go forth untrammeled by responsibility.

The language employed by the codifiers giving a right of action against the sureties, if any, upon the submission added, to leave no doubt of the intention to cover the whole subject, “ or any instrument collateral thereto,” and these provisions by operation of law are engrafted upon the agreement as effectually as if expressed in hcec verlos.

Thus properly construed, the agreement is an indemnity against any loss by reason of the revocation and with which the fund is burdened. Indeed if strict literal construction should be demanded of the disputed clause, it may well be said that the costs and damages provided for and given to the non-revoking party are an award made by statute in “ said arbitration,” particularly when, as suggested, that law becomes a part of the agreement.

It is not deemed necessary to pursue this subject further.

The judgment appealed from must be affirmed, with costs.

Daniels, J.

Serious doubts arise upon the arbitration agreement whether this action can be maintained for the^ appropriation of the securities, deposited for the only purpose" of satisfying any award which might be made, to the payment of the expenses incurred prior to the revocation of the submission, which prevented an award and terminated the authority of the arbitrators. But the interests of these parties will be promoted by avoiding a definite solution of these doubts at the present time. For if it should be held that the plaintiff had no right of action, a reargument of the appeal would become necessary in this court, which would produce a period of considerable delay. And after that, and tbe decision of the appeal, the case, without doubt, would be taken to the court of last resort by the defeated party. It will advance the final determination of the action to place it in a condition for taking that final step as early as practicable. And that can be done by waiving all these doubts and affirming this judgment at once. It will abridge the time very materially for the pendency of the action, and result in an early as well as final decision.

For these reasons it is considered best to concur in the conclusion of the opinion of Mr. Justice Brady, and affirm the judgment


text:
    Daniel Hoffman, App’lt, The Mayor, etc., of New York, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1890.)

    MUNICEPAU COBPOEATIONS—ASSESSMENTS—LAWS 1880, CBAF. 550.
    An owner of property who has taken proceedings before the commissioners appointed under chap. 550, Laws of 1880, to reduce his assessment, and afterwards paid the reduced amount, cannot thereafter seek to avoid or evade the judgment of said commissioners by suing to recover the money so paid on the ground that the assessment was illegal.
    Appeal from judgment entered upon the decision of the special term dismissing the plaintiff’s complaint.
    Action to recover the sum of $458.40 paid by the plaintiff on. account of an alleged illegal assessment for constructing sewers in the boulevard.
    Plaintiff had previous to payment of the assessment taken proceedings before the board of commissioners appointed under chap. 550, Laws 1880, and secured a reduction of thirteen per cent.
    The following is the opinion at special term :
    Lawrence, J.-—Inasmuch as the plaintiff submitted himself to the jurisdiction of the commissioners appointed under the provi-' sions of chap. 550 of the Laws of 1880 (see Consolidation Act, §§ 906 to 911, both inclusive), it is too late now, in my opinion, for him to seek to avoid or evade the judgment which those commissioners rendered. That commission was appointed by the legislature for the express purpose of .investigating and inquiring into-cases of this character, and of affording the appropriate relief. It is nowhere suggested that it was not competent for the legislature to create such a tribunal, and even if such suggestion were made the case of Sill v. The Village of Corning, 15 M. Y, 297, would, in my opinion, be a conclusive answer to it.
    I do not regard the case of The Matter of Lange, 85 M. Y., 307, as in point. It was there held that the provisions of the act of 1872 (§ 6, chap. 580 of the Laws of 1872), in relation to certain local improvements in the city of Mew York, authorizing the board for the revision and correction of assessments to consider on the merits all objections made to any assessment, etc., does not give the board jurisdiction to vacate and set aside an assessment because of want of power in the corporation to enforce any assessment whatever for the work, and that the appropriate function of that board is to review the judgment and discretion exercised by the board of assessors in distributing the assessment.
    The board of revision and correction of assessments was not vested with the power to validate any assessment. Its power was limited to revising and correcting. In that respect its functions differed most widely from the board created by the act of 1880. The latter board was especially created to revise, vacate or modify any of the assessments for any local improvements confirmed bv the board for the revision and correction of assessments before the 9th" day of June, 1880, and any assessments for a local improvement confirmed before said date, “which has been or shall be hereafter confirmed by said board.’’ Consolidation Act, § 907.
    Section 908 of the consolidation act (§ 2 of the act of 1880), makes it the duty of the commissioners, or a majority of them, to inquire into the facts and circumstances relating to any assessments to which objections may be made, and to hear the evidence in support of such objections, or in opposition thereto, and during such inquiry and hearing to administer oaths or affirmations to all persons testifying, and after duly considering the evidence, to determine whether substantialinjusticevjas caused by the confirmation of such assessments or otherwise, and any assessments as to which the commissioners, upon such inquiry, may determine that substantial injustice has been caused by the confirmation of the same or otherwise, may be revised,, modified or vacated by the said commissioners, and they may award such relief to the respective parties filing such applications as shall be, under the circumstances, and on the evidence presented, just and equitable, and they shall in determining such relief consider the fair value of the work done for which the assessment is imposed and the amount of benefit conferred over and above the damages, if any, caused by the improvement.
    And by § 911 of the consolidation act, Laws of 1880, chap. 550, § 6, the said commissioners shall award such relief as in their judgment is just and equitable in view of the circumstances in each case brought before them, etc., and shall file a certificate signed by a majority of said commissioners, in the department of finance, specifying the relief awarded by them, and upon such filing the assessment on each lot or parcel shall be revised, modified or vacated, as in said certificate specified, and the amounts fixed by such certificate, etc., shall thereafter be the extent of the lien upon said lots, etc., in respect of such assessment
    It will be perceived that the tribunal thus created by the legislature had not only power to revise and modify, but also to vacate anjr assessment. Of the power of the legislature to create such a tribunal, as before stated, I think there can be no doubt. The plaintiff having gone before that tribunal and sought on substantially the same grounds as he now presents to obtain a vacation or substantial reduction of the assessment cannot now repudiate his own act. He is barred by the judgment which the board has rendered. ■ Embury v. Conner, 8 H. Y, 512, and cases cited at p. 522.

      Again, I think that the whole scope and tenor of the act of 1880 and of the consolidation act shows that the legislature intended that the action of the commissioners thereby created should be final, except in so far as their action might be reviewed by certiorari, as the judgment of any inferior tribunal.
    Section 897 of the consolidation act provides that no suit or action in the nature of a bill in equity, or otherwise, shall be commenced for the vacation of any assessment in said city or to remove a cloud upon a title, but owners of property shall be confined to their remedies in such cases to the proceedings under this title.
    The provisions of the act of 1858, as to the vacation of assessments, as amended by the acts of 1868 and 1870, are continued in §§ 898 to 901 of said act. Then by §§ 901 and 902 applications to vacate assessments are confined to proceedings commenced within certain periods in the statute mentioned. Then by § 903 it is provided that no court shall vacate or reduce any assessment, in fact or apparent, confirmed after June 9, 1880, whether void or voidable, etc., otherwise than to reduce such assessments to the extent that the same may be shown by parties complaining thereof to have been, in fact, increased in dollars and cents by reason of fraud or substantial error; and in no event shall that proportion of any such assessment which is equivalent to the fair value of any actual local improvement, with interest from the date of confirmation, be disturbed for any cause.

    After these provisions of the consolidation act come the sections providing for commissioners to revise, vacate or modify any assessments, to which I have already adverted. It seems clear to me that the legislation in question was designed to afford a complete scheme of relief for all parties who were, or claimed to be, aggrieved by void or voidable assessments. The proceedings to vacate the assessments were defined and limited, and a board was created to pass upon all questions, with power to revise, vacate or modify. That that power was intended to govern in regard to assessments which were originally void as well as voidable, is, 1 think, clear from the sections of the consolidation act to which I have referred.
    It may be that the plaintiff in this case could not have been compelled to go before these commissioners.
    It is not necessary to decide that point, but having gone before them, he cannot now seek to substantially set aside or circumvent their judgment. Numerous cases seem to me to support the views which are here expressed, but I shall refer only to the recent case of Spencer v. Merchant, 100 N. Y., 585, wherein it was held that the legislature has the power to determine the amount of a tax for a local improvement and the property to be assessed therefor and that its action in these respects is conclusive. If it can determine the amount of the assessment, it would seem to follow that it can act through commissioners, and by their agency determine the amount which should equitably be assessed upon parties for an improvement which is technically irregular or which has been made under proceedings which were in the first instance absolutely void. See remarks of Finch, J., at p. 587. •

      I am, therefore, of the opinion that the plaintiff in this case is not entitled to recover and that the defendants are entitled to judgment dismissing the complaint upon the merits, with costs.

      James A. JDeering, for app’lt; George L. Sterling, for resp’t.
   Per Curiam.

For the reasons stated in the opinion of the learned judge in the court below who tried this case, we think his conclusion was right, and the judgment should therefore be affirmed, with costs.

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


text:
    Albert Kelly et al., App’lts, v. Daniel J. Sprague et al., Resp’ts.

      Supreme Court, General Term, First Department,

      Filed December 31, 1890.)

    1. Fraudulent Conveyance—What facts do not constitute.
    One S., who had a lease of a hotel, and had judgments outstanding-against him, was unable to pay the rent, and transferred the lease to one Y., in consideration of the surrender to him of a note held by Y., the payment by Y. of the rent and other hotel debts and the engagement of himself to run the hotel. Y. knew that S. was indebted, but did not know of the judgments, and his intent was simply to protect the debt due to himself, and not to hinder or defraud creditors. The lease was not shown to have a substantial value over the amount paid or assumed by Y., who afterwards transferred it to a corporation. Held, that the transaction could not be held to be fraudulent as to the creditors of S.
    2. Usury—Is a personal defense.
    Usury is a defense personal to the borrower, and cannot be raised by his judgment creditor in an action to set aside a transfer made in settlement of the infected obligation.
    Appeal from judgment in favor of defendants, dismissing the complaint upon the merits, entered on the report of a referee.
    Tho following is the report of the referee:
    Yale was a creditor of Sprague to the amount of $5,200 upon a promissory note not due. Sprague was the lessee of the Bartholdi Hotel, which he conducted. Yale proposed to purchase from Sprague an interest in the lease and furniture of the hotel. He offered $10,000 for one-third interest, or $15,000 for a half interest. There were several judgments outstanding and unpaid against Sprague, upon one or more of which executions were in the sheriff’s hands, and supplementary proceedings were threatened ; but of the existence of these judgments and contemplated proceedings Yale was ignorant Sprague proposed to sell a half interest for $15,000. Yale desired, before closing the matter, to examine the books of the hotel. He made the examination on the 30th of March. From such examination he found that Sprague had drawn out $5,000 over and above the receipts during the eleven months preceding; that he was indebted for some of the furniture of the hotel; and that the insurance was unpaid. The books contained no reference to judgments against Sprague, or to outside claims. Yale was so dissatisfied with the exhibit made by the books of the business that, on the evening of the 30th March, he withdrew his offer to purchase any interest in the hotel property. On the morning of the 31st day of March, Yale called upon the attorney of Sprague, who was preparing the papers for sale and purchase of the half interest, and' informed him that he had withdrawn his offer. The attorney knew about the judgments and executions against Sprague, but he had not given Yale any information in respect to them. Within an hour after Yale had left the attorney's office Sprague called upon him, and said that his attorney wished to see him immediately. Yale accompanied Sprague to his attorney’s office, and as soon as he entered he was informed by the attorney, in substance, that Sprague could not pay his rent, which would fall due the next day, and that, if the rent was not paid, Sprague would be turned into the street, his lease would be forfeited, and that, in such case, Yale would lose his claim of $5,200 against Sprague. The attorney at the same time informed him that Sprague would sell him the lease and furniture for his claim. To this Sprague assented. At the same time a paper was presented to Yale for his examination and approval, purporting to be a transfer of the lease. Yale read the paper, but he says that he was so excited at the fear of losing his debt that he was suddenly seized with a rush of blood to the head, to which he was subject, and did not fully comprehend the terms of the written instrument which had been handed to him. He testifies that the understanding between him, Sprague, and the attorney, at the time, was that, as a consideration for the transfer of the lease, he should surrender his claim against Sprague, pay the rent due the next day, about $4,000, the insurance in arrear, and also the debts against the hotel, amounting to $1,700. ' An inspection of theowritten instrument, however, shows that the only consideration mentioned is one dollar, with an agreement on the part of Yale to employ Sprague to manage the hotel for him at a salary of $2,500 per annum, for a period of nine years, and to pay the rent due the next day. As to this special undertaking on his part to employ Sprague, expressed in the written transfer, Yale has testified that he did not know that it was in the paper at the time he executed it But in this connection he says that he would not have purchased an interest in the lease, or hotel business, or the lease itself, except upon the understanding with Sprague that he would enter into his service, and manage the hotel for him, as he was himself entirely ignorant of such business. Yale, in his interview with Sprague and his attorney, upon the morning of the 81st March, signed the agreement with Sprague. Hot knowing the nature of the interview to which he was invited by Sprague, or what was in fact intended to be proposed to him, he had not come prepared to surrender his note. The note was in a safe-deposit company, and was not surrendered until several months afterwards, and then upon the demand of Sprague, when the relations between him and Yale had become unfriendly. The transfer having been made to him, Yale, the next day, provided himself with funds to the amount of $10,000 to pay the obligations he had assumed. Out of this sum he paid the rent due on the 1st day of April, together with the insurance unpaid, taxes to the amount of several hundred dollars in arrears, and the indebtedness of Sprague for furniture. The sums so paid in the aggregate amounted to $7,000 and upwards. The residue of the $10,000 he expended in the purchase of furniture. He, however, received from guests and lodgers of the hotel, after the 1st day of April, nearly enough to restore to him the rent he paid on that day. Yale, with Sprague in his service as manager, carried on the hotel, clearly on his own account, for about the space of two weeks, when, becoming satisfied that its conduct required more capital than he could invest, he, with one Hall, formed a corporation called the “Bartholdi Hotel Company.” The lease, and hotel furniture and property, which had been added to by Yale in the mean time, was assigned to the corporation by Yale, “ upon payment to him of $15,000.” This amount of $15,000 was paid to him in the stock of the company. Hall, the gentleman who was chiefly interested with Yale' in forming the corporation, put in $20,000 in money against what Yale had invested, and he received 200 shares of stock. This money, which Hall invested, with other sums which he afterwards paid in, was used in adding to the furniture and appointments of the hotel, and in the expense of running the same.
    From this cursory resume of the principal facts in the case the question arises, was the transfer of the 31st day of March from Sprague to Yale fraudulent as to the creditors of Sprague ? I think that it cannot be doubted but that Sprague, in offering to sell his interest in the lease and property to Yale, was influenced by á desire to place the property beyond the reach of his creditors,who were at the time pressing him with proceedings to collect their debts, and also through a fear that the lease would be lost to him if the rent was not promptly paid on the next day. And, furthermore, it cannot be doubted that he desired to place the property in hands not unfriendly, and through which he might find employment in the hotel, by which he might earn a livelihood, and, as he said, “ to earn money to pay his creditors.” But Yale, if acting in good faith, and not in furtherance of Sprague’s designs, and if purchasing for a valuable and fair consideration without any knowledge or reasonable ground for believing that Sprague was seeking to evade his creditors, would not be affected by any fraudulent intent on Sprague’s part. From a careful consideration of the whole evidence, I reach the conclusion that Yale, although he knew that Sprague could” not pay his debts, did not know, and in fact had no reason to know, that there were judgments or executions outstanding or existing against Sprague. The motive which chiefly influenced Yale in purchasing the property was to save his debt, a debt due from a man who was insolvent, and that his purchase was not made with any design to frustrate, hinder or delay the creditors of Sprague, but was honestly and in good faith ihade. I do not find that the leasehold interest and property had any substantial value above what Yale paid and assumed as the consideration for the transfer. Such conclusion is reached, notwithstanding Yale’s agreement to employ Sprague to manage the hotel- for him. I do not consider that fact as in itself evidence of fraud upon creditors. It was no reservation out of the property sold, but a collateral undertaking to employ the vendor, for which service the vendee was to pay. Yale did not understand the business, which is special in its character. He was obliged to employ some person to aid him, and as Sprague had experience and knew the guests, he was the fittest person to conduct the hotel, and would clearly be entitled to be paid for his services. It is true one Stafford, of Buffalo, had offered $30,000 for the hotel and property, and Yale himself had once offered $15,000 for a half interest. Stafford, when his offer was accepted, did not respond, and Yale, upon an examination of the books, withdrew his offer, upon the basis that the property was not worth as much as he supposed when he made the offer.
    The rent reserved in the lease was $50,000 per annum, a full rent. The evidence does not justify the conclusion that the lease had any substantial value above the rent reserved. While Sprague conducted the hotel he fell in arrear several thousand dollars, and the new proprietors have not been able to earn sufficient to pay a dividend to the stockholders. In fact, although they have put in a large amount of money, they have not been able to make the business profitable. There is no fact in evidence that can lead me to conclude that the property sold has any such value, in excess of the consideration parted with, and the obligations assumed by the purchaser on account of it, as to render the transaction dishonest or fraudulent as to creditors. The success of past management has shown no such fact, and, if the leasehold interest possesses any such value, the future only can develop and disclose it.
    . Some criticism has been made upon the character of the claim in favor of Yale against Sprague which has been surrendered. The note has been called usurious. The claim arose upon a sale of Central New Jersey Eailroad stock, considerably above the market price. Yale sold the stock for the same sum at which he had purchased it. He had made up his mind to hold it until it reached that price. Sprague bought it at that price. It was an improvident purchase at the time. But it has since sold for more than double the price he paid for it. Such transaction is not necessarily usurious. But it is not for the plaintiff to raise such question. The matter of usury is an objection personal to the borrower. He can waive it, as he has done in this instance, by discharging the infected obligation, and receiving it without objection in payment for property sold. The result reached, after a full consideration of the whole case, is that the circumstances of suspicion attending the transaction, to which the learned counsel for the plaintiff has called my attention, do not establish fraud, actual or legal, and their existence is not inconsistent with entire honesty and good faith on the part of the defendant Yale. The burden of showing fraud rested upon the plaintiff in order to impeach the transaction. This he has failed to do ; and the result is that the complaint must be dismissed, with costs.

      J. Noble Hayes, for app’lts; Stern & Myers, for resp’ts.
   Per Curiam.

The question here is substantially one of fact. The findings of the learned referee are fully supported by the evidence, and his legal conclusions properly follow therefrom. We have no doubt upon the evidence that the transaction between Sprague and Yale, which is here questioned, was a fair one under the circumstances. Yale took the lease and property which were .assigned to him in good faith and for value. He was entirely innocent of any fraudulent purpose of Sprague’s. .

The same was true of the transfer to the hotel compariy. The learned referee in addition to his report has given his reasons therefor in a careful opinion which covers the main questions discussed before us. We are satisfied with this opinion, and need add nothing further thereto.

The judgment should be affirmed, with costs.

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


author: Brady, J.

text:
    William E. Stillings, Assignee, App’lt, v. George A. Haggerty, Ex’r, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1891.)

    1. Estoppel.
    A party who negligently or culpably stands by and allows another to' contract on the faith and understanding of a fact which he can contradict cannot afterwards dispute that fact in an action brought against the person whom he has himself assisted in deceiving.

      2. Same—Charge.
    Where the only issue in the case was whether plaintiff’s assignee was estopped, is it not error for the court to refuse to charge that there was no inconsistency between the position of plaintiff’s assignor and that taken by the plaintiff on the trial; such a request being immaterial as-the facts stood.
    Appeal from a judgment rendered upon verdict

      Archibald 0. Shenstone, for app’lt; Rose & Putzel, for resp’t.
   Brady, J.

The defendant was the executor of the last will ■and testament of John Molloy, who died in September, 1884; the plaintiff is the assignee of Richard Taylor for the benefit of creditors. At the time of his death, Molloy was engaged in completing a contract between himself and one Hugh Smith, whereby he undertook to do certain work in and about the Murray Hill Hotel. To accomplish this Molloy employed sub-contractors, so called, and amongst others Taylor, who agreed with Molloy to do certain painting at a fixed price. During the life of Molloy he made •certain payments to Taylor on account of this contract, but there was due to the latter when Molloy died $3,000, together with interest, to recover which this action was brought. Smith was the owner of the property, and immediately after the death of Molloy the sub-contractors filed mechanics’ liens against the hotel property for their claims, some of them asserting that their liens arose from contracts made directly with Smith, the owner, and others that they arose under contracts made with Molloy. The total amount, excluding Taylor’s claim, was in excess of $25,000. Taylor’s lien, it must be noted, averred that the contract under which he claimed was made with Smith, the owner, only, and it was filed on the '27th of December, 1884. After the death of Molloy, Haggerty performed the unfulfilled part of the contract which his testator had made with Smith, and upon the completion of the work presented the bill to the estate for the balance still due. Haggerty claimed $20,000 and upwards from Smith, while the latter insisted that less than $8,104 was due. The testimony appears to show that Haggerty believed the claim of the estate was as he had stated it; but, in consequence of difficulties in the way of collecting it, he entered into negotiations with' Smith for a compromise or ádjustment of the claim. Smith offered to pay the $8,104 for a cancellation of all the liens, exclusive of Taylor’s, and $1,500 additional if Taylor would release his claim against him (Smith) personally, the money to be paid to Taylor if he would release the estate and him (Smith), or to Haggerty if Taylor would release Smith. The position that Smith seems to have taken was-that if Taylor had a claim against him he was under no obligation to pay the estate a dollar on his account.

If the claim had been created by reason of a contract between Taylor and Molloy, then Smith was willing to pay the estate what he thought was due, namely, $1,500. Haggerty, it seems, submitted this proposition to the lienors, informing them that the Molloy estate was insolvent and would not pay more than twenty-five per cent of its liability. As a result, all of them save Taylor accepted the proposition to take $8,104 in full satisfaction of the liens. This arrangement diminished the liabilities of the estate. It appears that Taylor refused to accept $1,500 in satisfaction of his lien of $3,000, and likewise to withdraw his claim against Smith and present it against the estate, and thereby enable Haggerty to collect from Smith the sum of $1,500. He stated, however, to Haggerty that he had no claim against the estate, but that his claim was against Smith, which was confirmed by the notice of mechanic’s lien before mentioned filed on the 27th of December, 1884; and Haggerty, relying upon this statement, and believing it to be true, accepted the sum of $8,104, already mentioned, in full satisfaction of all claims against Smith. The money received upon that settlement was paid over to the lienors, who released Smith and the estate.

After a lapse of two years Taylor commenced this action, claiming that the contract for the amount of his lien was made with Molloy and not with Smith; the response to which was, and that, response was made the subject of investigation and consideration upon the trial, that Taylor and his representatives were estopped from denying that the contract was made with Smith, and it was. insisted that if Taylor had not made the statement that his claim sprung out of a contract made by himself with Smith, the defendant, as executor, would have been able to collect from Smith the additional sum of $1,500, and with that amount enriched or enlarged the estate of his testator.

The issue thus created was submitted to the jury as a question of fact and they found in favor of the defendant; that is to say, that Taylor had, during the negotiations for the settlement of the claims of the testator Molloy with Smith, the owner, asserted in connection with that settlement that his claim did not-arise out of any contract with Molloy, but with Smith, and that created properly, naturally and justifiably the conviction that the estate was not burdened with the Taylor lien.

The elemente of an estoppel were distinctly stated to the jury and without exception, and sufficient has been developed in this case and in this opinion to show that those elements did exist. A party who negligently or culpably stands by and allows another to contract on the faith and understanding of a fact which he can contradict, cannot afterwards dispute that fact in an action brought against the person whom he has himself assisted in deceiving. Gregg v. Wells, 10 Ad. & E., 90. See, also, Continental N. Bk. v. Nat. Bk., 50 N. Y., 582, in which the subject is fully’ •considered and illustrated. In the case of the N. Y. Rubber Company v. Rothery, 107 N. Y., 316; 12 N. Y. State Rep., 53, it was stated that to constitute an estoppel in pais the person sought to be estopped must do some act or make some admission with an intention of influencing the conduct of another, and which act or admission is inconsistent with the claim he proposes now to make. The other party too must have acted upon the strength of such admission.

Here we find a statement made by Taylor which was utterly inconsistent with the claim he now presents. The evidence shows that he said to Haggerty in reference to the settlement which has been already mentioned: “You must settle the best you can; Mr. Hugh Smith owes me that money and I am going after Smith; ” and again, “You don’t owe me anything, the Molloy estate doesn’t owe me a cent; I didn’t make a contract with the Molloy estate ; and have got nothing to do with the Molloy estate.” Taylor knew Haggerty intended to act upon the statement thus made and did so, and it is quite clear that in permitting the statement of Taylor to prevail by overcoming the doctrine of estoppel invoked, the defendant’s obligations would be increased.

Several requests to charge were presented on behalf of the plaintiffs, which, with the exception of one, were adopted by the learned justice presiding in the court below, and the request which was refused was: “ I ask your honor to charge that there is nothing in the evidence to show that the claim of the plaintiff’s assignor (that is, Taylor), which is alleged in the answer of the defendants and the mechanics’ liens of the same which he sought to foreclose, was in any wise inconsistent with the claim of the plaintiff in this action.” It is sufficient to say that this request was wholly immaterial. 0

The issue was whether the plaintiff’s assignor was estopped from enforcing his claim, supposing it to exist, and, therefore, whether there was such a consistency as that suggested in the request is a matter of no moment and which it is quite clear could not by any possibility have done the plaintiff any injury; perhaps if the claim presented involved the question of whether the money was due from Molloy, the contractor, or Smith, the owner, the request might have become important if warranted by the evidence which on such an issue should be given to the jury; but, as already suggested, there was no such issue before the court, but a pure question of fact, namely, whether the acts arrayed as establishing an estoppel were sufficient in law to create one. They were, as the jury regarded them, and there is, therefore, no reason to disturb the judgment

The judgment should be affirmed, with costs.

Daniels, J., concurs.