text:
    Levi P. Morton, App’lt, v. The Mayor, etc., of New York, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed June 29, 1892.)

    1. Municipal corporations—Liability for damages caused by public works.
    To entitle a municipal corporation to claim exemption from the consequences of a use of its property on that of others by reason of legislative permission, it must appear that the legislature contemplated the doing of the very act which occasioned the injury.

      2. Same. , .
    , . Chapter 386, Laws 1878, authorizing the laying of moms and the erection of such structures and fixtures as the commissioner might deem necessary to deliver water at higher levels, does not expressly authorize the erection and maintenance of a pumping station in such a place and manner as to injure adjoining property by its continual jarring and noise, and does not preclude a recovery for injuries caused thereby.
    Appeal from judgment entered upon dismissal of complaint at circuit.

      Albert Boardman, for app’lt; C. Blandy and E. J. Freedman, for resp’t.
   Van Brunt, P. J.

—The plaintiff is the owner of three private dwelling houses situated on the southerly side of West Ninety-Eighth street, and immediately adjoining one of these houses on the east thereof is the Groton Water High Service Pumping Station, used in connection with the supply and distribution of Croton water at greater heights than can be obtained by the ordinary pressure of said water.

The complaint alleges that the maintenance of said pumping station by the defendant adjacent and so near to the premises of the plaintiff and the constant operation of the pumps and machinery produces a continual jarring of the plaintiff’s houses to their peril and injury, and also a great and incessant noise, all of which seriously damages the plaintiff’s property and houses, very greatly diminishing the selling and renting value thereof, and that the operation thereof constituted and is a nuisance to the plaintiff, whereby he has sustained damages to a large amount, and claimed judgment therefor.

The defendant admits the maintenance' of the structure, but denied liability for consequential damages. Evidence having been given upon the trial tending to support the allegations of the complaint the same was dismissed, and from the judgment thereupon entered this appeal is taken.

It is not disputed by the defendant upon this argument that the facts proven by the plaintiff, in case the defendant had been a private individual instead of a municipal corporation operating the pumping station under the sanction of law for public purposes, would be a nuisance. And it is also conceded that the plaintiff has suffered pecuniary damages special to himself as distinguished from the general public. But it is urged that the pumping station in question being erected and maintained under the direct authority and sanction of the legislature, the defendant is not responsible for the consequential damages.

In the consideration of the questions brought up by this appeal, it is not necessary to enter into a disquisition as to whether the legislature may by any legislative enactment allow a municipal ■corporation to use its property in such a manner as to destroy the utility of the property in its neighborhood, because no such question seems to be involved in the case at bar. The rule is well ■settled that in order that exemption can be claimed from the consequences of the use of property by a corporation, it must appear that the legislature contemplated the doing of the very act which ■occasioned the injury.

The ease of Cogswell v. N. Y., N. H. & H. R. R. Co., 103 N. Y., 10; 3 St. Rep., 56, lays down distinctly this principle. In the case cited the court say: “ The statutory sanction which will justify an injury to private property must he express, or must be a clear and unquestionable implication from powers expressly conferred, so that it can be said that the legislature contemplated the doing of the very act which occasioned the injury. 'This is but an application of the reasonable rule that statutes in derogation of private rights or which may result in imposing burdens upon private property must be strictly construed. For it cannot be presumed from a general grant of authority that the legislature intended to authorize acts to the injury of third persons were no compensation is provided, except upon condition of obtaining their consent.”

And this brings us to the consideration of the question as to whether the defendant has brought itself within the rule above set forth.

Chapter 386 of the Laws of 1878 empowered the commissioner r of public "works when authorized by a three-fourths vote of all the members elected to the common council of the city, etc., to expend certain sums of money in laying pipes to extend and enlarge the distribution of Croton water throughout the city,.etc., and in laying mains and erecting or constructing such structures and fixtures as the commissioner might deem necessary to deliver said water at higher levels.

The commissioner of public works having requested authority to erect a suitable building with two pumping engines and fixtures, including a tank, etc., on the lots between Ninety-seventh and Ninety-eighth streets formerly occupied by the Aqueduct, on the 3d of December, 1878, the board of aldermen passed a resolution authorizing such construction, which resolution was duly approved by the mayor, and thereupon such pumping station was built with the results which have been above described. The question presented is whether the legislature expressly authorized the doing of the very-thing which resulted in the injury.

It is claimed upon the part of the respondent that the case of Atwater v. The Trustees of the Village of Canandaigua, 124 N. Y. 602; 37 St. Rep., 234, is an authority in support of this proposition. But it seems to us that an examination of that case shows that it is not applicable to the one at bar. In that case, by virtue of certain powers, the trustees of the village, as commissioners of highways, were authorized to construct the identical and particular structure at the identical and particular place by the legislature ; and the coffer dam which was the cause of the damage to the plaintiff was a necessary incident to that structure. The court say that the necessity for it made it lawful; and it seems to be expressly recognized in that case that if the injury was permanent a different rule might apply, but it being only temporary, the necessity and the direct legislative authority were held to absolve the commissioners. It may further be remarked in passing that that action was an action for negligence, and nothing else. It was not an action for damages because of the maintenance of a nuisance.

It is well settled that a private individual must use his own property in such a manner as not to injure the property of his neighbor; and the same rule has been applied to the corporation of the city of New York, it having been held that it has n'a greater right to maintain a nuisance on its land than a private person possesses. Brower v. Mayor, 3 Barb., 257; Griffin v. Mayor, 9 N. Y., 456. And in the case of Noonan v. City of Albany, 79 N. Y., 476, it is expressly held that a municipal corporation has no immunity from legal responsibility for creating or maintaining a nuisance.

It seems to us it would be a great stretch of language to hold that because the legislature authorized the laying of mains and the erection of such structures and fixtures as the commissioner might deem necessary to deliver water at higher levels, that he therefore had a right to maintain any nuisance in any part of the city of New York which he might deem necessary, and the common council might approve of, to the absolute destruction of adjoining property. We can find no principle upon which it can be claimed that simply because a public service is being performed a man’s house can be shaken down about his ears, and the use of his property absolutely destroyed.

If the defendant’s claim is correct, then such a principle must prevail. It is undoubtedly true that the courts have gone a ■great way in making private rights subservient to public interests where there has been express legislative authority for doing the very act which has occasioned the injury to such private rights; and 'there has been in many instances, under a fiction of law, absolute destruction of private property without compensation. But when such results ensue there must be no ambiguity about the legislative authority; and we search in vain for any legislation from which it appears that the legislature contemplated any such results as are shown to have arisen from the operation of the pumping stations erected by the defendant. And it is not to be presumed that the legislature would authorize an invasion of private rights such as has been established by the evidence in this case without providing for compensation. It is evident from the nature of the work that the nuisance is not temporary, but permanent, and that the plaintiff is permanently deprived of the beneficial enjoyment of his property. Under these circumstances we do not see how the city can escape liability therefor.

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

O’Brien and Patterson, JJ., concur.


source: Caselaw Access Project

author: O’Brien, J.

license: Public Domain

text:
    Ferdinand C. Bamman, App’lt, v. Theresia Binzen, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed June 29, 1892.)

    Lease—Covenant to benew ob sell.
    Under a covenant in a lease that the lessor at the expiration of the term will renew the lease or sell the property to the lessee at its then market value, the option to renew or sell rests with the lessor.
    Appeal from judgment dismissing complaint.

      Mark Ash, for app’lt; Thomas McAdam, for resp’t.
   O’Brien, J.

—The action was brought to compel the specific performance of a covenant of renewal in a lease which reads as follows:

“And the said party of the first part hereby covenants and agrees to and with the said party of the second part that she will, on the expiration of the term hereby granted, renew said lease, or will sell said property to the said party of the second part at its then market value.”

By assignment of the lease the plaintiff succeeded to the rights of the original lessee, as did .the defendant by virtue of a conveyance from his executors to those of the original lessorsothat, as between the parties to the record, the question is to be disposed of as though we had the original parties to the lease before the court. Prior to the expiration of the term, plaintiff demanded from defendant a renewal of the lease for another term of six years at the same rent, which was refused, and upon such refusal this action was brought.

With respect to this covenant two questions are presented for determination; one as to whether, under the covenant, the option of the renewal of the lease or the sale of the premises rested with the lessor or the lessee; and, second, assuming it rested with the-lessee upon exercising such option for a renewal, was the covenant sufficiently definite to entitle him to a specific performance ?

Both these questions were determined adversely to the plaintiff,, and in the conclusion reached by the learned judge below we concur, though upon grounds which may be briefly stated different from those specified by him in his opinion. He was of opinion that specific performance could not be decreed because the covenant for" renewal was too indefinite in not naming the length of term or rental to be paid. This view he based upon the cases of Abeel v. Radcliff, 13 Johns., 296; Duffield v. Whitlock, 26 Wend., 55, and Robinson v. Ketteltas, 4 Edw. Ch., 67. An examination of these authorities, we think, will show that the reason for holding the covenants void for uncertainty was that they omitted certain essential particulars regarding the terms of the renewal, which, in order to make a definite contract between the parties, would necessarily have to be supplied by the court; which thus-would present cases in which specific performance would not be decreed. The question here is, however, whether a covenant drawn in the form of this one is not sufficiently definite because implying a renewal for the same term and at the same rent.

As said in Tracy v. Albany Exchange Co., 7 N. Y., 474: “ There are several decisions showing that a covenant in a lease to renew it, without providing in respect to the-term to be granted or amount of rent to be paid, implies a renewal for the same term and rent.” See, also, Rutgers v. Hunter, 6 Johns. Ch., 215, 218; Western Trans. Co. v. Lansing, 49 N. Y., 499, 503; Cunningham v. Pattee, 99 Mass., 248; Richards v. Richards, 2 Younge & Collyer’s Chan., 427, 428; Price v. Assheton, 1 Younge & Collyer’s Equity, 92; Willis v. Astor, 4 Edw. Chan., 594; Whitlock v. Duffield, Hoffm. Chan., 110, 114; Kelso v. Kelly, 1 Daly, 422.

Were" there no other question in the case, we think that these authorities would abundantly support the view contended for by appellant, that a covenant to renew implies a renewal for the same terms and at the same rent, and would not, therefore, be void for indefiniteness and could be specifically enforced. The other question, however, remains, which we regard as fatal to appellant’s right to maintain this action, and that relates to* whether the option given by the covenant rested with the lessor or lessee.

This covenant provides that the landlord will, on the expira- ■ tian of the term, renew the lease or sell the property to the tenant at its then market value. We think such a covenant is analogous to the common covenant whereby a landlord agrees to renew the term or pay for the improvements on the prop- ■ erty. Both reason and authority favor the view that such a covenant leaves it optional with the landlord as to whether he will rehbw the lease or .purchase the buildings. By parity of reasoning a similar conclusion, it seems to us, should flow from an optional contract such as this, wherein the landlord agrees to do one of two things and where the tenant agrees to do neither. It must be remembered that the tenant here assumes no obligation; he neither agrees to renew the term nor to purchase ; the covenant is one entirely on the part of the landlord, and it would thus seemingly be necessary that the option should be with her. By the terms of this covenant the landlord bound herself to the tenant, but the tenant did not bind himself at all.

While, therefore, it was compulsory upon the landlord either to offer to renew the lease or to sell the property, the option was with her as to which she should do, and then the right rested with the tenant of rejecting such offer. It is true that the principle contended, for by appellant is well settled, that where a covenant is doubtful in language and susceptible of two constructions, one giving an election to the landlord and the other to the tenant, the construction must be given thereto more favorable to the tenant. Where, however, the language is fairly susceptible of but one construction, the rule for which the appellant contends is not applicable. Having in view the terms and conditions of the lease and the language of the covenant' itself, we think that it is reasonably free from doubt, admitti ng of but one construction, which we have already indicated as conferring upon the landlord the option of 'determining which of two things she would do, to one of which, however, she was obligated, leaving the tenant entirely free, upon the landlord’s exercising her option, to either accept or reject.

This conclusion is necessarily fatal to plaintiff’s right to maintain this action, for, upon the facts appearing, he rested his whole claim upon the theory that the option restpd with him, which he exercised by demanding a renewal,' which was refused. Hot having offered, therefore, to either lease or purchase, he was not in a position to compel the defendant to give a new lease. Had the offer to renew the lease, or purchase been made by the tenant a serious question would have been presented, in view of the indefinite terms of the covenant as to fixing the value in case of sale. The conclusion at which we have arrived, however, renders it unnecessary to discuss this question.

For the reasons given, we think the judgment appealed from should be affirmed, with costs.

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


author: O'Brien, J.

text:
    The People ex rel. The Consolidated Gas Co. of New York v. Theodore W. Myers, Comptroller. In the Matter of Paving Sixteenth Street from Avenue C to East River.

      (Supreme Court, General Term, First Department,

      Filed June 29, 1892.)

    Certiobabi—Will not lie to beview assessment in new york.
    A writ of certiorari will not lie to review the action of the board of revision and correction of assessment lists of the city of New York.
    Hearing upon return to writ of certiorari to review proceedings in the matter of an assessment.

      Henry H. Anderson, for relator; George L. Sterling, for resp’t.
   O'Brien, J.

—In this proceeding the relator seeks to review the action of the hoard of revision and correction of assessment lists in confirming the assessment for paving Sixteenth street from Avenue C to the East river. In view of the conclusion at which we have arrived 'respecting the relator’s remedy, it is unnecessary to discuss the merits or review the facts as they appear upon the writ and the return.

We do not think, under the present condition of the law, that a writ of certiorari will lie to review the action of the hoard of revision and correction of assessment lists. In the case of the Sixth Avenue R. R. Co. v. The Mayor, 43 St. Rep., 759, we had occasion to examine the law relating to the remedies that were provided for the relief of persons who felt themselves aggrieved by illegal assessments. It was therein held that § 897 of the consolidation act (chap. 410, Laws of 1882) was unqualified and applied to every case of assessments. , See also Mayer v. The Mayor, 101 N. Y., 284. This section (897) provides: “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 title, but owners of property shall be confined to their remedies in such cases to the proceedings under this title.” Unless, therefore, the relator here can show that the remedy to which he resorted is one provided for by the act, the court is without authority or power to grant relief. The relator would seemingly acquiesce in this view; because, while not referring us to any authority which would sanction a proceeding in this form to get rid of an assessment claimed to be illegal, he relies upon this very consolidation act alone (§§ 897-899) as authority for this proceeding. As we have seen, § 897 expressly confines the remedy. Section 898 provides a remedy by which a person _ aggrieved by an illegal assessment can take summary proceedings in court for itsj removal or reduction ; but this section does not sanction nor authorize this to be done upon a writ of certiorari. Section 899 prohibits the setting aside of assessments for certain irregularities and technicalities. We do not think, therefore, that a writ of certiorari will lie, for reasons similar to those given in the Sixth Avenue Railroad case, and which we have again attempted briefly to point out.

In addition to the remedy provided by § 898 of the Consolidation act, there are other remedies open to the relator. Should he pay the assessment under coercion, under the authority of Jex v. The Mayor, 103 N. Y., 536; 3 St. Rep., 657, and other cases which recognize the principle laid down in that case, an action at law would seemingly lie to recover the money back. Or as determined in the case of Lennon v. The Mayor, 55 N. Y., 361, if the assessment is illegal he can refuse to pay it, and payment by the city could not be enforced.

As said in Sixth Ave. R. R. v. The Mayor, supra, “It seems to be á hardship that the plaintiff should be compelled to submit to a sale of its premises, and of the creation of an apparent cloud upon its title, and to be obliged to assume, if proceedings should be taken under it to oust it of its property, to show the invalidity or illegality of the assessment. Such, however, seems to be the only course left open to them.” See Matter of Smith, 99 N. Y., 424-427; Chase v. Chase, 95 id., 373; Matter of Brainerd, 51 Hun, 380, 384; 21 St. Rep., 364; Lennon v. The Mayor, 55 N. Y., 361; Astor v. The Mayor, 62 id., 580. These, and the recent decision of this court in the Sixth Avenue Bailroad case, are authorities for the proposition that all remedies for affirmative relief, except as laid down in the sections of the Consolidation act, have been taken away.

Having called attention that no provision can therein be found which would justify or authorize a writ of certiorari to review the action of the board of revision and correction of assessment lists, we are of opinion that the writ must be dismissed, with ten dollars costs and disbursements.

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


text:
    The Hygeia Water Ice Co., App’lt, v. The New York Hygeia Ice Co., Limited, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed June 29, 1892.)

    Cobfobatioss—Exclusive bight to coefoeate same.
    A. corporation cannot claim the exclusive right to the use of a word which is a part of its corporate name, where, prior to its incorporation, such word had been appropriated by another company.
    Appeal from judgment at special term dismissing complaint upon the merits.

      Chas. Steele, for app’lt; George E. Mott, for resp’t.
   O’Brien, J.

—The action is brought to enjoin the defendant company from using the word “ Hygeia ” in its corporate title. It appears that in October, 1885, a corporation was organized by the name of the Hygeia Sparkling Distilled Water Company, for the purpose of manufacturing pure and tasteless distilled 'water for drinking and other purposes. This company was known as the Hygeia Company. On March 1, 1890, the persons interested in the Hygeia Water Company caused the incorporation of the plaintiff company under the name of the Hygeia Water Ice Company. This company, though it has expended money in experimenting and labor, has never manufactured ice to sell, nor in fact has it decided upon the process which it shall adopt in its manufacture, nor engaged practically in the business for which it was organized of selling ice. The incorporators of the defendant company, though they had considered the question of forming an ice manufacturing company as early as January, 1890, were not 'actually incorporated until the 1st day of April, 1890; from which it will be seen that in point of time the plaintiff company was actually incorporated one month prior to the defendant company.

The theory upon which the action is based is, that the plaintiff by the adoption of its corporate name acquired an exclusive right or title to the word “Hygeia.” Upon the’ trial the complaint was dismissed on the authority of Caswell v. Davis, 58 N. Y., 223. In this case it was decided that the words “ Ferro-Phosphorated Elixir of Calisaya Bark ” could not be appropriated, as a trade-mark by certain individuals.

In disposing of it upoti this ground we think the learned judge overlooked the principle which the plaintiff invoked; as no claim was made to. the name as a trade-mark, nor was the question of trade-mark involved. As already said, the issue presented was whether or not a corporation, having had conferred upon it by the law a corporate title and name, was entitled to protection in the exclusive use of. that name as against any other corporation subsequently organized to transact the same business.

The ground upon which the relief was sought was that the use of the corporate name of the defendant' was an infringement and wrongful imitation of the name of the plaintiff. As aptly said in 4 Am. & Eng. Encyc. of Law, 206: “Apart from any statute, a corporation has a right to the exclusive use of its name, and this will be protected upon the same principle that persons are protected in the use of trade-marks.” We think, however, that this general statement of the rule is subject in this state to the limitation that no corporation can„lawfully appropriate as its exclusive name words necessary to describe the business intended to be conducted. It was insisted below, as it is insisted here, that the word “Hygeia” in the title “Hygeia Water Company” is descriptive of character or quality, and therefore, under the exception to the rule above noted, could not be exclusively appropriated either as a corporate name or as a trade-mark. As it is not necessary, we do not pass upon that question now, because the absence from the record .of evidence excluded relating to the meaning of the word might, if the case were to be decided.upon this ground, require a new trial, so that testimony relating thereto could be received. _ . . • .

_ . . . We think that one fact appearing is fatal to plaintiff’s right to the relief sought. It is conceded that in 1885 the word “Hygeia,” to which the plaintiff here lays exclusive claim, was used by another company as part of their corporate name. It must be self-evident that, as no trade-mark is claimed, and as the very word “Hygeia,” which plaintiff asserts it exclusively appropriated, was used and appropriated by another company prior to the incorporation of the plaintiff, this furnishes an answer to the suggestion of exclusive ownership. It is true that in the former case the word “ Hygeia ” was used in connection with a water company, and that the plaintiff proposes to engage in the ice business. Ho claim, however, is made to “ Hygeia ” as connected with the ice company; but the plaintiff stands upon the assertion that, apart from the association of the word used as part of its corporate name and title, it has acquired by its certificate of incorporation an exclusive right or title m the word “Hygeia;” which, as we have already shown, had been prior to that time appropriated by another company, and against which prior company it is clear that the plaintiff could not have obtained an exclusive right.

We are of opinion that upon this ground, of the formation of a corporation prior to plaintiff’s which had appropriated the word “ Hygeia ” as part of its corporate title, the plaintiff was prevented from 'acquiring an exclusive right to the use of such word as part of its corporate name.

The judgment appealed from should therefore be affirmed, with costs.

Van Brunt, P. J., and Patterson, J., concur in result.


author: Van Brunt, P. J.

text:
    John J. McHugh, Pl’ff, v. The New York Elevated Railroad Co. et al., Def’ts.

      (Supreme Court, General Term, First Department,

      Filed June 29, 1892.)

    1. Appeal—Reference—Finding.
    In cases of unliquidated damages, it is not necessary that the conclusion of the court or referee should be subject to mathematical demonstration. If the evidence is sufficient to support the finding, it will not be reversed simply because the court cannot see the precise theory upon which the result was arrived at.
    3. Same—Judgment cannot be increased.
    The court, on appeal, has no power to increase the judgment, although it may reduce the same;
    1 Appeals by both parties from a decision entered upon the report of a referee.

      C. A. B. Pratt, for pl’ff; R. L. Maynard, for def’ts.
   Van Brunt, P. J.

—The defendants appeal from the whole judgment, and the plaintiff appeals from that part of the judgment which only allowed'$63.33 rental damages, it being claimed that the referee erred in limiting the rental damages to such as accrued prior tó the commencement of the action.

We see no reason for interfering with the judgment appealed from. There was evidence more than sufficient to support the conclusions arrived at by the referee. It is true that it is claimed that the precise method by which the referee arrived at the amount of rental damage" cannot be determined from the evidence. But in cases of unliquidated damages it is not necessary that the conelusion of the court or referee should be subject to mathematical demonstration. If the evidence is sufficient to support the finding, the court will not reverse simply because it cannot see the precise theory upon which the result was arrived at.

It is undoubtedly true that the referee was led astray by the condition of the decisions of this general term in respect to the right to recover rental damages which had accrued since the commencement of the action, he following the decisions as they then existed. But this court, upon a subsequent examination of the law, came to the conclusion that the previous ruling was error, and adopted what they believed to be the true rule in those cases. ' i

The plaintiff does not desire, apparently, a reversal of the judgment because of the rule adopted by the referee, but seems to think that this court has the power to increase the judgment to the amount which should have been granted under the subsequent decisions of this general term. We are not aware of any power in the court to increase a judgment, although they may réduce the same.

We think, therefore, that the judgment appealed from should be affirmed, with costs.

O’Brien and Patterson, JJ., concur.


text:
    Charles Donohoe et al., Resp’ts, v. William L. Pomeroy, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 29, 1892.)

    •Bill of particulars—Attorney’s bill.
    A bill of particulars served in an action by an attorney for professional services, which states the items of service with a claim for a gross sum, is sufficient; it is not necessary that a charge be affixed to each particular item.
    Appeal from order denying motion of defendants for a further bill of particulars.

      E. C. Boardman, for app’lt; B. N. Cardozo, for resp’ts.
   Van Brunt, P. J.

—The action was brought to recover the value of certain services claimed to have been rendered by the plaintiffs as attorneys for the defendant, and also for certain disbursements. In response to the defendant’s demand for a bill of particulars, the plaintiffs served an itemized bill, but none of the items of service has its value affixed to it, and the bill of particulars after enumerating the items of service claims a gross sum.

It would appear that the services were rendered in different actions and in advising the defendant as to his affairs generally. Thereupon the.defendant made a motion for a further bill of particulars, which was denied : and from th^ order thereupon entéred this appeal is taken.

We do not see but what the defendant has received all the information which is necessary for him to prepare for trial by the bill of particulars already received, All the services for which claim is made in the complaint áre set forth with great particularity in the bill furnished. It cannot be claimed that an attorney under such circumstances is bound to ¿ffix a charge for each particular service, because they may be so blended and related to each other that it is impossible to separate one service from another. The defendant is aware of all the services which were rendered, and the general charge which is made therefor. If he desires to dispute the service he has all the information necessary for him to do so”; and if he desires to dispute the value of such services he has ample opportunity to prepare for such an issue.

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

O’Brien, J., concurs.


author: Patterson, J.

text:
    James Gibb, Resp’t, v. Joseph F. McCoy et al., App'lts.

      (Supreme Court, General Term, First Department,

      Filed June 29, 1892.)

    Patents—Duration or license—Termination.
    Where a license under a patent provides that defendants shall pay a specified minimum royalty for the first three years; that if the royalty for the third year did not amount to a certain sum plaintiff could cancel unless defendants agreed to pay such sum for each succeeding year; that at the end of the first year defendants could relinquish working the patent on giving three months notice, and also in relation to its termination at the expiration of the three years, it is apparent that the parties contemplated and intended that it should continue for at least three years, and an action for the royalty for the third year is maintainable, although defendants gave notice of their intention to terminate it at the end of the second year.
    Appeal from interlocutory judgment and order overruling demurrer to an amended complaint.

      Charles D. Ridgway, for app’lts; Chas. W. Pierson, for resp’t.
   Patterson, J.

—This is an appeal from an order and an interlocutory judgment entered thereon overruling a demurrer to an amended complaint, and the single question presented for consideration relates to the construction of a contract entered into between the parties to the action and which contract is contained in a letter written by the plaintiff to the defendants and in the reply of the defendants thereto. It appears by the complaint, in which the letters referred to are set forth in full, that the plaintiff agreed to appoint the defendants sole agents in the United States for the manufacture and sale of a certain article patented by the plaintiff, and among the conditions of the agency as stated in the plaintiff’s letter are the following, viz.:

“Fifth. You shall undertake to pay us a minimum royalty of one hundred pounds sterling for the first three years of this license.

“Sixth. If at the end of the three years .the royalty for the third year shall not have amounted to at least £200 sterling we shall be at liberty to cancel this agreement unless you shall then undertake to pay us on each succeeding year a minimum royalty of £200 sterling.”

“ Seventh. If at the end of the first year you wish to relinquish the working of our patent you shall be at liberty to do so upon giving us three months notice to that effect.

Eighth. If at the expiration of three years we elect to terminate this license in accordance with clause six, we agree to purchase from you any stock you may hold of these patent spinners at the net cost of manufacture.

Eleventh. This license shall be understood to come into effect on the first day of January, 1888.”

The letter of the defendants in response to that of the plaintiff contains the acceptance of the agency, and all the terms and conditions thereof are accepted in the very words of the plaintiff’s proposal. The complaint further states that on the 15th day of October, 1889, the defendants notified the plaintiff in writing as follows: “ Agreeably with the terms of the agreement, we beg to notify you of our desire to, terminate the same regarding the Bauer wrenches at the close of the year.” It is further alleged that since the first day of January, 1890, the defendants have done no work under the agreement; that they have paid to the plaintiff two hundred pounds sterling (being the minimum royalties for the years 1888 and "1889), and are now indebted in the sum of one hundred pounds sterling for the minimum royalty for the third year of the contract.

The demurrer is interposed on the ground that the complaint does not state facts sufficient to constitute a cause of action, and the contention in support of it is that it appears upon the face of the complaint that the defendants terminated the contract by giving notice of their desire so to do three months before the expiration of the second year.

The right to thus terminate the contract is based upon the theory that there being no fixed period of the duration of the agency stated in the contract, it was terminable by either of the parties on giving reasonable notice to the other. The general rule of law on the subject is doubtless as stated by the appellant, but the rights of the parties here are to be determined by their agreement, and there is no ambiguity whatever respecting their intention.. Whatever maybe said regarding a longer period, it is manifest that both the plaintiff and the defendants contemplated and intended the agency should continue for at least three years. This is apparent from the provisions of the contract above set forth, and the defendants stipulated to pay for royalties at least one hundred pounds sterling in each of the three years for which special and definite arrangements were made or, to repeat the words of the agreement “ the first three years of this license.” It would be to ignore this clear expression •of intent to hold that when both parties stipulate that a certain sum shall be paid for the first three years of. the license, and "that at the expiration of such.three years one of the parties shall have the right to terminate the contract under certain circumstances and on certain conditions, there was not at least a fixed period of three years for the continuation of the contract obligations and relations unless they were sooner terminated pursuant to other provisions of the contract itself. The demurrer was properly overruled and the order and interlocutory judgment are affirmed, with costs, with leave to appellant to withdraw his demurrer within twenty days' upon payment of costs of demurrer in court below and upon this appeal. ,

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


text:
    Charles H. Bunn, Resp’t, v. Margaret M. Lett, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 29, 1892.)

    Pleading—Contract—Demand.
    An agreement pursuant to which plaintiff surrendered a mortgage held by him and took a second mortgage in place thereof, provided that after six months “in case the amount then due to said B. is unpaid, the saidB. is to negotiate a sale of said bond and mortgage at a discount of not exceeding ten per cent and §100 for searching title, if he finds it necessary so to do, which discount and expense is to be paid by said L. on demand." In an action to recover such discount and expense, Seld, that as no specified amount was to be paid and no time or place of payment fixed, it was essential to support the cause of action that a demand should be alleged and proved.
    Appeal from judgment in favor of plaintiff by direction of the court.

      George W. Wilson, for app’lt; George W. McAdam, for resp’t.
   O’Brien, J.

—The number of frivolous and untenable objections raised upon this appeal, for the purpose of overturning the judgment, clearly indicate to us, as they did undoubtedly to the learned trial judge, that the defenses interposed were without merit, and the object sought delay. We. regret, under these circumstances, to be obliged to interfere with the judgment. But one-question is presented which, though to some extent technical, can be made available in obtaining a further delay, which apparently is the object sought by the defendant.

From the facts, it appears that the defendant owned the premises on the corner of Rutger's Slip and Cherry street. Plaintiff was a builder, and had a contract for the erection of a building on the premises, with a bond and mortgage to secure the payment for the work and material to be done and furnished.. In October, 1888, defendant was indebted to plaintiff in the sum of $24,407.25 and interest. The defendant desired a new loan of $40,000, and in order to get it it was necessaiy to have the plaintiffs mortgage taken off the record. As a consideration for the cancellation of such bond and mortgage, an agreement was entered into whereby the plaintiff agreed to surrender his bond and mortgage, and take a new one for $10,000, subordinate to the prior one of $40,000, to be made by the defendant -to some third person. Such agreement contained the following clause:

“At any time after the expiration of six months, * * * in case the amount then due to said Bunn is unpaid, the said Bunn is to negotiate a sale of said bond and mortgage at a discount not exceeding 10 per cent, and $100.00 for searching title, if he finds it necessary so to do, which discount and expense is to be paid by said Lett on demand.”

The testimony shows that defendant did not pay the $10,000 within the time agreed, and pursuant to agreement plaintiff sold the°bond and mortgage for a thousand dollars less than its face, and. allowed $47.50 for examining title. It was to recover this amount of $1,047.50' that this action on the covenant was brought.

The claim made by the plaintiff was amply supported. The defendant sought to raise some-question as to the good faith of the sale of the bond and mortgage, which it appears was made by plaintiff to his wife. But this, upon the testimony, was disposed of, there being no contradiction of the facts proven that from her separate estate the wife advanced the money to purchase the bond and mortgage, and this after the defendant had been requested to procure a purchaser, and after efforts in other directions had proved unsuccessful. As stated, therefore, the plaintiff proved every fact which entitled him, in the absence of any testimony offered by the defendant, to the direction which was made by the court, with one single exception, which may now be briefly referred to.

It will be noticed that, in the covenant referred to, it was in effect agreed that if Bunn should negotiate a sale of the bond and mortgage, should he find it necessary to do so, he had the right to allow a discount not exceeding ten per cent., and $100 for searching the title,- “ which discount and expense is to Ice paid by said Lett on demand.” There was no demand alleged in the complaint, nor proven upon the trial. It is true that proof was furnished that a demand was made for the $10,000 mortgage debt, but there is no evidence that any demand was made after the sale of the bond and mortgage for the $1,047.50. Upon the close of plaintiff’s testimony a motion was made to dismiss the complaint upon the express ground of the absence of such an allegation of demand in the complaint and proof upon the trial, which being overruled an exception was taken.

The question therefore presented is: Was a demand necessary to be alleged and proved ? It is difficult to formulate a fixed rule for determining when a demand is, and when it is not necessary as a condition precedent to maintaining an action. In respect to all instruments or agreements for the payment of a specific sum at a particular place or upon demand, it has been held that the commencement of the suit is itself a sufficient demand; that in such cases a demand is not a condition precedent to a right of recovery. As stated in Locklin v. Moore, 57 N. Y., 362, “The only benefit the defendant could get from the specification of the payment ata particular place is, that if he was ready there to pay, and kept ready, he could set that fact up in his answer, and then pay the money into court, and allege such payment in his answer, and thus shield himself from all liability for interest and costs.” This case states the rule as follows:

“It is the settled law of this state, announced in many decisions, that when a specific sum of money is made payable by the agreement of the parties upon demand, or at a specified time at a particular place, as against the original debtor no demand at the time or place prior to the commencement of the suit is necessary. The commencement of the suit is itself a sufficient demand. Locklin v. Moore, 57 N. Y., 362; citing Wolcott v. Van Santvoord, 17 Johns., 248; Caldwell v. Cassidy, 8 Cow., 271; Huxtun v. Bishop, 8 Wend., 15; Nelson v. Bostwick, 5 Hill, 37; Hills v. Place, 48 N. Y., 520; Watkins v. Crouch, 5 Leigh, 522.

Whilst, therefore, Locklin v. Moore, supra, is authority for the position that when a specific sum of money is made payable by agreement of the parties upon demand at a specified time at a particular place, as against the debtor no demand is necessary before suit brought, nor is it as essential part of plaintiff’s cause of action, it is also true, as said further on in the opinion in that case, that “ a contract could doubtless be so drawn that the demand and place of payment would become part of it so that an action could not be maintained without a demand at the place.” We think that neither this case nor the others cited by the respondent go the extent of holding that a demand, upon the facts here appearing, which was provided for by the agreement of the parties, was not a condition precedent to plaintiff’s right to bring or recover in the action.

The necessity for a demand becomes apparent when we remember that this was not an agreement by which a specified sum was to be paid at a particular time or place. ' The only definite part of the agreement was that the bond and mortgage was not to be sold until after the expiration of six months. It is true that some evidence to vary this clause of the agreement was introduced, but for the purposes of the question now before us it may be disregarded, and the discussion proceed upon the theory that the contract in relation to the sale of the bond and mortgage as it appears in the agreement remained in full force and effect.

It was not to be sold at all unless it was necessary; and though deemed by the plaintiff to be necessary, it was still left with him as to when after the six months he would sell the bond and mortgage, and upon what discount, and -what amount he should allow for searching the title. It will thus be seen that until notice was given by the plaintiff to the defendant, she could not have known whether or not the bond and mortgage were sold, nor for what amount; therefore, the extent of her liability was information she could only be put in possession of after the plaintiff had proceeded and sold the bond and mortgage," thus liquidating the amount which under the covenant the defendant was to pay him by reason thereof.

As stated in the American and English Encyclopædia of Law (vol. 5, p. 527): “ It is necessary that a demand be made upon the party who is bound to discharge the obligation or perform the contract unless indeed such party has incapacitated himself to discharge the one or perform the other.” And again (p. 528): “ Whenever the fact by which the defendant’s liability is incurred lies peculiarly within the knowledge and the privity of the plaintiff, notice thereof must be given to the defendant.”

Had it not been necessary for the plaintiff to sell the bond and mortgage, nothing would have been due from the defendant, assuming that it was paid when by its terms the bond and mortgage became payable. In other words, no liability could arise until the plaintiff exercised his option and sold upon terms which. should not include a loss to the defendant of more than $1,100; but how much less could only be ascertained when the plaintiff had sold the bond and mortgage and liquidated the amount. We think that, as no specified amount was to be paid, a@ no time or place for payment was fixed, under such a contract when the parties themselves agree that it shall not be payable until after a demand, such circumstances create an obligation, and make it essential to support the cause of action, that a demand should be alleged in the complaint and proved upon the trial.

We are of opinion, therefore, that the failure to allege and prove such demand was fatal to plaintiff’s right to a recovery, and that the judgment, solely upon that ground, must be reversed and a new trial ordered, with costs to appellant to abide the event

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


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

text:
    Cunigunde Listman, Resp’t, v. John Hickey, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 29, 1892.)

    Vendor and purchaser—Rescission—Damage to premises.
    Defendant contracted to sell certain premises and personal property to plaintiff, but before the time for delivery of the deed the premises were damaged by fire and water and some of the personal property was lost. Held, that this entitled plaintiff to rescind the contract and recover the payments made thereon.
    Appeal from judgment entered upon verdict directed by the court and from order denying motion for new trial.

      S. H. Stuart, for app’lt; S. D. Levy, for resp’t.
   Van Brunt, P. J.

—This action was brought to recover the amount which had been paid on an agreement to convey certain premises in the city of Hew York, and the counsel fees and dis: bursements incurred by the plaintiff in the examination of the title of the premises.

Upon the trial it appeared that on the 5th. of December, 1889, the plaintiff and defendant entered into an agreement in writing, whereby the defendant agreed to sell to the plaintiff the premises in question, together with certain personal property therein. One thousand dollars was to be paid upon the execution of the contract, and the balance to be paid as provided in the agreement. The defendant agreed to execute and-deliver the usual warranty deed on or before the 3d of January. 1890, upon receiving payment of the balance, and the plaintiff had the privilege of taking title on the 20th of December, 1889. On the 31st of December, or the 1st of January, 1890, the premises were damaged by fire and water to the amount of about $2,000 or $3,000. On the 3d of January, 1890, the plaintiff refused to take the title, various objections being raised; nothing, however, was said about the fire. Thereupon the plaintiff brought this action, alleging the agreement and that the defendant on the 3d of January, 1890, failed and neglected and refused to give to the plaintiff a deed conveying the said premises pursuant to the agreement, and that the plaintiff then informed the defendant that she elected to rescind and annul the agreement, and demanded the repayment to her of the sum paid and her expenses. The answer admitted the agreement, denied the refusal to convey, and asked for damages by reason of the failure of the plaintiff to take the premises as-agreed upon.

Upon the trial evidence was admitted without objection showing the damage of the premises by fire, "and the loss of certain personal property upon the premises which was included in the agreement. The court thereupon directed a verdict in favor of' the plaintiff, and from the judgment thereupon entered this appeal is taken.

It is claimed upon the part of the appellant that the objection in reference to the fire not having been raised as a ground for rejecting the title, it could not be availed of upon the trial. Under the pleadings, if the evidence in respect to the fire had been objected to, it may possibly be that it could not have been admitted. But this evidence having been admitted without any objection as to-its admissibility under the pleadings, they may upon this appeal be made to conform to the proof in order to support the-judgment.

But it is further claimed that the happening of the fire afforded no ground for the refusal of the plaintiff to accept the deed, or for the rescission and annulment of the contract by her; and that the fact that a building contracted to be sold is damaged or even destroyed by fire between the time of the execution of the contract and the time fixed for the delivery of the deed is no defense to an action for the purchase money, and per contra, no ground for a rescission of the contract, or the repayment of the amount paid upon the execution thereof.

Certain authorities are cited to support this proposition. But-we fail to find that they bear out the contention. In fact the case of Goldman v. Rosenberg, 116 N. Y., 85; 26 St. Rep., 378, seems to establish the contrary proposition. And in the case of Smyth v. Sturges, 108 N. Y., 502; 13 St. Rep., 801, as correctly stated by the court below, it was held that, under a contract similar to the one at bar, the defendant was entitled to the premises in the-condition in which they were bargained for, and his refusal to-take them in an altered and inferior condition was not a breach of the contract.

It might very well be that an action in equity for the performance of the contract might have been maintained, compensation being made to the plaintiff for the damage to the premises and property in question. But no such relief was asked for upon the part of the defendant. He insisted that he had duly performed all the conditions in the agreement; and that the plaintiff had failed to comply with the conditions and terms of the contract, upon her part, -and damages were claimed by reason of the failure of the plaintiff to take her title. Therefore the parties put themselves strictly upon their legal rights; and under such circumstances it is clear that the only judgment which could be granted was that which was directed by the court below.

The judgment and,order should be affirmed, with costs.

0’Brien, J., concurs.

Patterson, J.

—I concur in the result for the reason that the contract contemplated the purchase and sale of both real and personal property. Had land and the buildings on it alone been the subject of the contract, a different conclusion might have been reached. As is said in Clinton v. Hope Ins. Co., 45 N. Y., 465: “The general rule is that the vendee in a contract for the sale of land is entitled to any benefits and improvements happening to the land after the date of the contract and must bear any losses by fire or otherwise which occur without the fault of the vendor. Dart on Vendors, 116; 1 Sug. on Vendors, 468; Paine v. Meller, 6 Ves., 349.” But where land and personal property are both the ¡subject” of the contract, the agreement is entire and the personal property being destroyed, the vendor cannot perform, and as the vendee cannot get what he contracted for he is not liable for the price in an action at law and is entitled to recover back what he paid.


text:
    Daniel E. Sickles, Sheriff, Resp’t, v. David R. Sullivan, Rec’r, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 29, 1892.)

    Execution—Pledged property—Receiver.
    The interest of a judgment debtor in goods pledged by him is subject to the lien of executions from the time they are delivered to the sheriff, which lien attaches to the surplus in' the pledgees’ hands on a sale of the goods and is not affected by the appointment of a receiver in aid of a junior execution.
    Appeal from judgment entered after trial at special term.

      F. R. Kellogg, for app’lt; D. P. Hays, for resp’t.
   Van Brunt, P. J.

—In March, 1890, judgments in favor of a large number of people were entered in the office of the clerk of the city and county of New York against Louis Rosenberg & Ismar Baker, and at the same time executions were issued therein tó the sheriff. At the time of the issuing of the said executions there were in' the possession of Wilmerding, Morris & Mitchell' goods belonging to said Rosenberg & Baker, the judgment debtors, upon which said Wilmerding, Morris & Mitchell claimed a lien for advances. On the 2d of April, 1890, judgment was entered in the office of said clerk in favor of Bmil Oelbermann and Louis Domerich against said Rosenberg & Baker and the judgment duly ' docketed and execution issued to the sheriff.

On the 11th of April, 1890, the goods in question were sold "by Wilmerding, Morris & Mitchell, but not at a regular sheriff’s •sale; and the balance of the proceeds, after deducting advances, •expenses and charges, amounted to $856.01. On the 29th of April, 1890, an order was made in the action of Oelbermann, whose •execution was outstanding in the hands of the sheriff, for an ex■amination of the members of the firm of Wilmerding, Morris & Mitchell, and such steps were taken in those proceedings as re-suited eventually in the appointment and qualification of this defendant as receiver of the property of the judgment debtors above mentioned. Both the sheriff and the defendant caused demand to be made upon Wilmerding, Morris & Mitchell for the payment to them respectively of the sum representing the equity of Bose'n-berg & Baker in these goods; and this demand having been refused, each party to the present action commenced suit against Wilmerding, Morris & Mitchell to recover this fund. A motion having thereupon been made for an order of interpleader, and for permission to deposit the fund with the clerk of the court subject to the future determination of an action between the sheriff and the receiver, such order was granted and substitution duly made.

Subsequently the suit came on for trial at the special term, where it was decided that the fund should be awarded to tbe plaintiff, and judgment was entered accordingly with costs as against the defendant. From this judgment this appeal is taken.

It is claimed upon the part of the appellant that the defendant, by his appointment as receiver of the assets and effects of Bosenberg & Baker, became entitled to this fund in the absence of any prior lien attaching thereto on behalf of the sheriff. This is undoubtedly true; and the only question involved is whether a prior lien did not attach in favor of the sheriff by virtue of the executions held by him. The claim that no such lien did attach in favor of .the sheriff is urged upon the ground that the only method by which the sheriff acting under an execution can acquire a lien upon or interest in the judgment debtor’s equity in property pledged to a third person as security for money advanced is that pointed out in § 1412 of the .Code. What that section has to do with the question of lien it is impossible for us-to imagine. It relates entirely to the method in which a sale may be had of the interest of the judgment debtor in personal property lawfully pledged.

Section 1405 of the Code seems to dispose of the whole question, it appearing that the goods and chattels of a judgment debtor not exempt by express provision of law from levy and sale by virtue of an execution, and his other personal property which is expressly declared by law to be subject to levy by virtue of an execution are, when situated within the jurisdiction of the officer to whom an execution against property is delivered, bound by the execution from the time of the delivery thereof to the proper officer to be executed, but not before.

Therefore, the interest of the pledgor in the goods in the hands of Wilmerding, Morris & Mitchell became bound by the executions the moment that they came into the hands of the sheriff without any levy being made. If Wilmerding, Morris &'Mitchell sold the goods, and there was a surplus in their hands belonging to the judgment debtor, the executions attached to this surplus in precisely the same manner, and therefore the sheriff' was entitled to take it under the "executions as so much money. It is difficult to see how, by the appointment of a receiver in-aid of an execution, the lien of a prior execution upon the-property of- the judgment debtor can be overruled. Certainly .such a thing would be an anomaly in legal procedure. This being the view which we' take of the law relating to the case, we have not thought it necessary to refer to many of the facts which are claimed to be established by the findings of fact; the more particularly so as many of the findings are absolutely unintelligible.

We think, therefore, that the judgment appealed from should be affirmed, with costs.

Patterson, J., concurs.


text:
    Edward A. McCampbell, Assignee, App’lt, v. The National City Bank, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed June 29, 1892.)

    ■Set off—Claim not due at time of assignment.
    At the time of the execution of a general assignment the assignors were indebted to defendant ufcon a note which was not then due, but which matured prior to the commeneerúent of an action brought by the assignee for moneys collected by defendant for said assignors. Held, that defendant was entitled to set off in such action the amount of said note.

      (Rothschild v. Mack, 42 Hun, 73; 3 St. Rep., 471, and Fera v. Wickham, 61 Hun, 343; 40 St. Rep., 644, followed.)
    Appeal from interlocutory judgment overruling demurrer interposed by plaintiff.

      Edward C. Perkins, for app’lt; Stern & Rushmore, for resp’t.
   O’Brien, J.

—The amended complaint shows that the plaintiff is thg substituted assignee of the firm of P. Doddridge & Co., under an assignment made by that firm dated February 23,1891, .and valid under the laws of Texas, of which state the members •of the firm were residents, and where they carried on their business. The suit is brought to recover moneys of that firm in the hands of the defendant at the time of the assignment, amounting to $4,635.84, and further moneys collected by it for the firm after the making of the assignment and prior to March 2, 1891, .amounting to $2,095. The answer sets up two affirmative defenses by way of set-off, to which the demurrer was interposed.

By the first defense it is in substance alleged that plaintiff’s .assignors, by permitting the defendant to believe in and rely upon their solvency, allowed that firm to open an account with it on the 15th day of September, 1890 ; that thereafter and on or about December 10, 1890, the firm of Doddridge & Co. delivered their note for $15,000 to the defendant, with the request to discount the same for their account, which the defendant did, believing in and relying upon the solvency of that firm, and placed the proceeds of the discount to the credit of the firm; that when said account was opened the firm of Doddridge & Co. were in embarrassed" circumstances, and were in that condition at the time they requested the discount of the defendant, and thereafter remained and were at all times that they drew the proceeds of ■said discount from the defendant entirely insolvent, and were known by them to be so insolvent, which fact was fraudulently •concealed from the defendant.

It will thus be seen that the first plea of set-off is based on the insolvency of the plaintiff’s assignors, supplemented by facts tending to show fraud in the creation of the debt from such assignors to the defendant.

The second plea of set-off is mainly founded upon the insolvency of plaintiff’s assignors and the natural equities that flow to thé defendant by reason of that condition.

To these defenses the plaintiff demurred upon the ground that they did not state facts sufficient to entitle the defendant to an equitable set-off to plaintiff’s claim.

It will be noticed that at the time of the assignment by Doddridge & Co. to the plaintiff $4,000 of the indebtedness from the defendant was due, and that the balance of it was thereafter collected. The note for $15,000 on which Doddridge & Co. had obtained a discount from the defendant did not mature until after the making of the assignment; though before the plaintiff commenced the action, and in fact before the plaintiff became vested as sole substituted assignee with the right to demand the property of the assignors or to maintain the action, the note of the assignors to the defendant bank had became due and payable.

The defendant’s right to off-set this claim maturing after the assignment as against the amount due to the insolvents at the date of the assignment is placed upon two grounds ; the-first, fraud in contracting the debt, coupled with insolvency; and secondly, the insolvency of Doddridge & Co., coupled with the fact that both debts matured before plaintiff had the legal capacity to sue.

With respect to the first there can be no question in view of the decision in Rothschild v. Mack, 115 N.Y., 1; 23 St. Rep., 922, that if the facts alleged in the answer would j ustify the legal conclusion that the debt Was fraudulently contracted, then the plaintiff’s assignors, having obtained the money by means of fraud, they at once became liable to repay the same, and it was, therefore, a debt immediately due which, as against any claim enforceable by the plaintiff, would have been the proper subject of a set-off. We do not think, however, that it is clearly made to appear upon the facts averred that the debt to the defendant was fraudulently contracted ; the only fact tending to support the theory of fraud being the failure of the plaintiff’s assignors to apprize the defendant of their exact financial condition at the time of opening the account, and thereafter down to the date when they obtained the discount of the $15,000 note. In the absence of any other facts or express representations of solvency, we doubt if legal fraud could be predicated upon such conduct of Doddridge & Co.

It is unnecessary, however, for us to determine this question, as we think the judgment appealed from, in view of the present condition of the law, should be affirmed upon the second ground, namely, the- insolvency of plaintiff’s assignors coupled with the fact that both debts matured before the action was commenced. This latter circumstance, of the maturing of the indebtedness before the plaintiff had legal capacity to sue, or before the action was commenced, is not one upon, which much or great stress is laid; the substantial ground entitling the defendant to the equitable right of set-off being mainly the insolvency of plaintiff’s assignors and the natural equities that arise in favor of the defendant superior to general creditors represented by the plaintiff appearing from the facts alleged in the answer.

The question thus presented may for greater clearness be thus formulated. Where at the date of a general assignment for the benefit of creditors there is an indebtedness due the insolvent from a third party, and an indebtedness from the insolvent to such third person exists but has not yet matured, can such third party be allowed a seboff in equity ? Or, as applied in this case, was the circumstance of the insolvency of P. Doddridge & Co. alone sufficient to sustain defendant’s right to set-off ?

It would serve no useful purpose to examine the numerous and recent decisions upon the question of when the right to set-off exists, it being sufficient to refer to the cases which have passed upon the precise question here presented, and which should be followed until a contrary view is taken by the court of appeals. Rothschild v. Mack, 42 Hun, 73; 3 St. Rep., 471, is a direct authority in favor of the defendant’s right in this case to set-off the claim" which had not matured at the date of the assignment. It is true that upon the appeal the judgment was affirmed upon the ground that the debt having been fraudulently contracted, thereby became immediately due and payable; but the court expressly said that they did not “ wish to be understood as denying the correctness of the holding at general term. We simply do not decide the case upon that ground, and we neither affirm nor dis-affirm its correctness,”

The precise question was again presented before the October term (1891) of this court in Fera v. Wickham, 61 Hun, 343; 40 St. Rep., 644. The principle was again maintained that a plaintiff who had certain claims against an insolvent firm which were not due could maintain an action to secure a set-off against an indebtedness due by him to the defendant assignors.

These two general term decisions of Rothschild v. Mack and Fera v. Wickham have been followed not only in this case, but by the special term of this court in Harding, adm’r, v. Hanover Rational Bank (N. Y. Law Jour., Jan. 20, 1892), and by the special term in Kings county in the case of Peck v. The Pacific Bank (not reported).

We think that these two general term decisions are controlling as authorities upon this court, and should be followed until the precise question is ultimately determined by the court of appeals.

The judgment appealed from should therefore be affirmed, with costs.

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


author: Lewis, J.

text:
    Alfred Bell, App’lt, v. John H. Howe, Resp’t. John H. Howe, Resp’t, v. Alfred Bell, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    1. Ejectment—Title to alley.
    One A. in 1853 mapped a tract of land and sold to appellant’s predeeessor a lot numbered four on the map, bounded southerly by lot twenty, which was ninety feet wide. A short time thereafter A. filed a new map, which indicated an alley fifteen feet wide across the northerly side of lot twenty, and in its rear, and also a dedication deed, which stated it was for the use of lot twenty and others, but lot four was not mentioned. On foreclosure of certain mortgages lot twenty was sold to respondent’s predecessor, and respondent also claims title to the alley through A.’s son, to whom A.’s assignees for creditors conveyed it. The husband of appellant’s immediate grantor, and who joined in the deed to him, was the owner of one of the lots entitled to an easement in the alley. Held, that appellant had no title by deed or prescription to the alley in question, and that as against him, the alley having been abandoned, respondent was entitled to recover possession of the strip of land.
    8. Same—Evidence .
    The testimony of A.’s son as to conversations with his father in relation to the preparation of the maps was not inadmissible under § 829 of the Code, as appellant, having no title to the alley", did not derive title from a deceased grantor.
    Appeal from a judgment in action No. 1, entered in Monroe «county clerk’s office on June 29, 1891, on the report of a referee dismissing the plaintiff’s complaint and granting an injunction against the plaintiff.
    Appeal in action No.' 2, from a judgment entered in Monroe county clerk’s office on J une 30, 1891, on the report of a referee in favor of the plaintiff for the possession of the premises described in the complaint.
    . Action No. 1 as originally commenced was in the form of an action in ejectment, and by the amendment of the plaintiff’s complaint was changed to an action in equity, the relief sought being an injunction restraining the defendant from occupying or interfering with the plaintiff’s possession and use of the premises -described in the complaint..
    No. 2 is an action of ejectment to recover possession of the same premises described in the complaint in action No. 1. Both actions were referred to the same referee; and were by stipulation of the parties tried at the same time, and the evidence taken was used alike in both cases.

      J. Van Voorhis, for app’lt; Nathaniel Foote, for resp’t.
   Lewis, J.

—The subject matter in dispute in these actions is a piece of land situated in the city of Rochester, fifteen feet wide, and about one hundred and, fifty-eight feet in depth, tying between the residence of the appellant, situated on the corner of East avenue and Goodman street, in the city of Rochester, and the residence of the respondent, fronting upon Goodman street in the rear of the appellant’s lot. Both homesteads are a part of the t" Arnold tract, so called, and the land in dispute was called and known on the trial as “ the alley.” Each party claims it as a part of his lot.

The facts material to the decision of these appeals, and as found ■ by the referee, are as follows:

William E. Arnold is the common grantor of the parties. In May, 1853, he became the owner of a tract of land in the city of Rochester, which he subsequently designated as the “ Arnold Tract,” and which included the alley in controversy in this actian^ and the homestead premises now occupied by each of the. parties to these actions, together with other lands. Arnold entered into possession of the tract, and on' or about the 28th day of July, 1858, he subdivided the tract.into twenty-five lots, separately numbered them, and caused to be made and filed in the-Monroe county clerk’s office a map of said tract, showing his subdivision thereof into said lots, and the location and dimensions of each lot.

According, to such subdivision and allotment, lot No. 4 (appellant’s lot), fronted upon the southerly side of Bast avenue,, corner of Goodman street, and extended southerly along the westerly side of Goodman street 425 feet to the northerly side of lot, No. 20; its southerly .end was 128 feet 3 inches wide." According to such subdivision and allotment, lot No. 20 fronted upon ' Goodman street, was ninety feet in width upon Goodman street, and ninety feet in width in the rear, and on its notherly line 158, feet 3 inches in depth, and adjoined lot No. 4.

After the making of said allotments and the filing of said map, and on or about August 1,.1853, Arnold conveyed to George 0.. Buell lot No. 4 according to said subdivision, and as shown upon said map, and by the description in the deed lot No. 4 was bounded on the south by the north line of lot No. 20. • After-wards, and on or about September 28, 1853, Arnold made and afterwards filed in the Monroe county clerk’s office another map of said allotment and subdivision of the Arnold tract, upon which lie indicated an alley or passageway across the northerly side of lot No. 20, from Goodman street westerly to the rear of said lot, fifteen feet in width ; at the west end of lot No. 20 it turned at right angles southerly, and extended along the rear of said lot No. 20, and in the rear of other lots of. said tract, also fronting upon Goodman street. Arnold, on said 29th day of September, 1853, ■ executed and caused to be recorded in the Monroe county clerk’s office an instrument under his hand and seal, being a dedication deed, in and by which it was recited, among- other things, that as the proprietor of said Arnold tract he had caused the same to be subdivided into lots according to the plan or specification made by James M. Bruff, city surveyor, dated July 28, 1853, filed in said clerk’s office, and that for the benefit and use of the purchasers of lots on said tract, and in explanation of said map, he declared, among other things, that said passageway, meaning the alleyway, of which the premises in dispute was a part, indicated on said map, represented an alley for the use of owners of certain lots specified by their numbers, among which were lots Nos. 20, IS . and 22. But neither lot No. 4, nor lot No. 3, adjoining lot No. 4 upon the west, was mentioned in said dedication deecl; the deed further provided that gates should be erected at the entrance of •said alley on Goodman street.

There was sufficient evidence to sustain the foregoing facts as found by the referee.

By various mesne conveyances, the title to lot No. 4 became vested in the appellant about September 27, 1870. The evidence failed to show the precise time of the filing of the map referred to in the deed from Arnold to Buell of lot Ho. 4. It was, however, shown by the testimony of Hobart Gf. Arnold, a son of William E. Arnold, that it was filed in the clerk’s office prior to the conveyance of lot Ho. 4 by his father; and that the map upon which the alley was designated was filed after his father had conveyed lot Ho. 4 to Buell. Both maps bore the same surveyor’s date, July 28, 1853, showing, as testified to by Hobart, that there was but one survey made. There was in the handwriting of William E. Arnold, upon the face of the map referred to in the dedication deed, the words and figures following : “ Dated September 28th, 1853. William E. Arnold,” satisfactorily establishing that he had a copy of the original map made, upon which he caused to be designated the alley, and also showing the time it was made and became for the purposes of the alley a map.

There was evidence tending to show that the second map was filed on the 28th day of September, 1853.

While the alley in controversy, as indicated upon.dhe map, adjoins the south end of lot Ho. 4, lot Ho. 4 got no rights or easement in the alley by the dedication deed.

The appellant’s immediate grantors were Sarah H. Van Epps and her husband, John 0. Van Epps, Mrs. Van Epps being the owner of the lot. Van Epps was at the time of his joining in the deed of this lot to the appellant the owner of lots in the Arnold tract fronting upon and having an easement in the alley as designated in the map referred to, and he’ had in common with others, including the occupant of lot Ho. 20, prior to and during the time his wife owned the fee to lot Ho. 4, occupied the alley in controversy.

The evidence as to the character of the occupation of the part of the alley in controversy was quite conflicting, the appellant claiming that his grantors were in the exclusive possession thereof, but the respondent’s evidence tended to show that lot Ho. 20 enjoyed the same privileges of the alley as other lots did. Ho part of the alley designated upon the map, except the part thereof in controversy, was ever opened or used. The portion of the alley adjoining the lots conveyed, with the exception of the piece in controversy, was incorporated into the adjoining lots as they were conveyed and occupied, and the scheme of the alley seems to have been by common consent practically abandoned; in fact it was never adopted by the grantees of the lots.

It is quite clear that the appellant failed to establish any paper title to the land in controversy. He sought,c however, upon the trial to establish a prescriptive title. The referee decided, we think correctly, that he had failed to show a prescriptive title. His possession was not of sufficient duration or of a character to give him title by adverse possession. He entered into possession of lot Ho. 4 on September 20, 1870, and brought this action on the 6th of September,. 1889; the respondent’s action against the appellant was commenced within less than twenty years from the time of the date of appellant’s deed.

The'appellant took no title by the quit claim deed from Mrs. Yan Epps, for neither she nor her husband had any title to the alley toconvey, except a possible easement therein arising from the ownership of other lots adjoining the alley as projected.

We fully concur in the findings of the learned referee that the-appellant failed to make a case, and that his complaint was properly dismissed.

Action No. 2 was commenced July 1, 1890.

William E. Arnold, the common grantor, took title to the entire tract, subject to two purchase money mortgages. These mortgages "svere liens upon the whole tract, including lot No. 20. They were subsequently foreclosed, and judgments obtained, and lots 1, 20, 21 and 22 in said tract were sold upon the foreclosure sale to Samuel Yeomans. The respondent’s lot was described in the-referee’s deed as lot No. 20 on the Arnold map made July 28, 1853, and filed in the clerk’s office September 30, 1853. This reference evidently was -to the map referred to in the dedication-deed, and, as” we have seen, on that map the alley in question was indicated, and lot No. 20 appeared upon this map as being only seventy-five feet wide. The mortgages, as we have seen, covered-the lot as designated upon the first map, being ninety feet in width, and the alley appeared upon the second map as laid across the north side of lot No. 20.

It is the contention of the respondent that the fee to lot No. 20 as designated upon the first map passed by the sale under the foreclosure judgments. The title acquired to lot No. 20 under the foreclosure sale by several mesne conveyances become vested in the respondent, and if the sale under the foreclosure judgment, carried' the title to the whole ninety feet he became thereby vested with title to the lot as indicated upon the first map. If, however, the fee to the alley did not pass by this conveyance, it remained in William E. Arnold, and the evidence shows that Arnold prior to the sale of this lot under the foreclosure judgment executed a general assignment of all his real and personal estate to Silas O., Smith and Theodore Church for the benefit of his creditors; the title to the land in dispute passed to the assignees under the assignment and was thereafter conveyed by them to Hobart Cr. Arnold, and by him through various .conveyances became vested in the respondent, and he became, as was found by the referee, the owner of lot No. 20 as laid out and designated upon the first map,, which included the fee to the alley in question, and as the use ,df it as an alley had been abandoned, he was entitled to recover possession of it as against the appellant.

We have examined the numerous exceptions taken by the appellant to the admission and rejection of evidence.

The testimony of the witness Hobart G-. Arnold relating te conversations with his father as to the preparation of the maps-was, we think, competent as apart of the history of the preparation and filing of the maps. The objection that he was an incompetent witness under § 829 of the Code cannot avail, for as we have seen the conversation related solely to the title to th,e alley and the appellant having no title to it he did not derive title from, a deceased grantor.

We find nothing in the exceptions of the appellant justifying the granting of a new trial.

The judgments appealed from should be affirmed, with costs.

Dwight, P. J., and Macomber, J., concur.


author: Per Curiam.

text:
    The People, Pl’ffs, v. Frank H. Hull et al., Def’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    1. Supervisors—Alteration of wards—Buffalo.
    By the charter of 1891, the number of wards in the city of Buffalo was increased and the boundaries altered, and it was provided that there should be one supervisor for each ward, and that each supervisor in office should be the supervisor for the ward in which he resides for the remainder of his term, provided it should be the whole or a part- of that in whicn he was elected. The old. second and two districts of the old third ward made the new third, and the rest of the old third and one district of the old first made the new fourth ward. M. and S were, respectively, the supervisors of the old second and third wards, and both resided in the new third. Held, that the charer contemplated that there should be but one supervisor from each ward, and that M. having been elected from a ward which was wholly included in the new third, was entitled to represent that ward, and that S. could not represent the fourth ward as he did not reside within its limits.
    2. Same—Decision of board not final.
    The decision of the board of supervisors on this question is not conclusive.
    Case submitted under § 1279 of the Code of Civil Procedure, to determine who are supervisors of the third and fourth wards of the city of Buffalo.
    Prior to the adoption of the new charter for the city of Buffalo, . March 27, 1891, chapter 105 of the Laws of 1891, the city was divided into thirteen wards. One to twelve, inclusive, had two supervisors each; ward 18 had one; they held office for two years. By the new charter the city was divided into twenty-five wards. By the new division the old second and two election districts of the old third made the new third ward; the remaining districts of the old third and one district of the old first comprised the new fourth ward.
    The defendant Thomas H. Munsell was a resident of and duly elected a supervisor of the old second ward at the annual election in 1890, for the term of two years.
    He had always resided in the same place in said ward at which he resided when elected.
    He duly qualified, and has since been an acting supervisor. The defendant, Christian Smith, was a resident of and duly elected a supervisor of the old third ward at the annual election for 1890, for the term of two years; he has always resided and still resides in the same place at which he resided when so elected; his place of residence being in one of the election districts of the old third ward added, as aforesaid, to form the new third ward.
    Munsell and Smith qualified as supervisors and performed the duties of their office for the year 1891, and are still acting supervisors.
    " On the first day of October, 1891, there was no supervisor re. siding within the boundaries of the new fourth ward; ascertain. ing that fact, the city clerk, in giving the required notice of offices to be filled at the annual election in 1891, included the supervisor for said new fourth ward.
    The defendant Frank H. Hull and one William Wey and were respectively put in nomination by the two principal political parties as opposing candidates for the office of supervisor for said ward. Hull received 959 votes and Wey and 854. The returns of said election were duly filed and canvassed; a certificate of his election was delivered to Hull; he qualified as supervisor.
    Hull was a resident and- elector of the fourth ward, and still resides therein; if the office was required to be filled at said election it is conceded that Hull was duly elected and entitled thereto. That since January 1, 1892, and prior to the 17th day of May, 1892, there were no official duties for either of the defendants to-perform as supervisor.
    After the annual election of 1891, the clerk of the board prepared a roll of the members thereof for the year 1892, enrolling Munsell and Smith as supervisors for the new third ward and. Hull as supervisor for the fourth ward.
    A special session of the board was called on the 17th day of May, 1892. Notice thereof was given to all the supervisors, including the defendants.
    The clerk, before the board convened, struck Hull’s name,from the roll of membership and inserted in place thereof the name of Smith, and struck Smith’s name from the roll of membership as-the supervisor from the third ward, and thereupon the session of the board of supervisors was called to order and the question of the right of the respective defendants to represent, as supervisors,, the new third and fourth wards was considered by the board, and by a majority vote thereof it was decided that the defendant Thomas H. Munsell was entitled to the seat of supervisor for the new third ward, and that Christian Smith was entitled to the seat as supervisor for the new fourth ward.

      Simon W. Rosendale, attorney-general, for pl’ffs ; Fayette Kelly, for def’ts Smith and Munsell; Frank C. Laughlin, for def’t Hull.
   Per Curiam.

—All of the provisions of the charter of 1891 ... material to the questions presented for adjudication, with an ex-: ception hereafter mentioned, took effect on the first day of Janu-1 ary, 1892.

So much of § 365 of the charter as bears upon the question ,-q before us is as follows:

“ The electors of each ward shall elect one supervisor. * * *" 5 The term of office of the supervisor shall be two years. * * * The supervisors in office at the time this act takes effect shall'v serve out their respective terms as hereinafter provided. * * *" Bach supervisor elected at the annual election of 1890, and who shall be in office on the first Monday of January, 1892, shall be the supervisor of the ward, created by this act, in which he resides on the first day of October, 1891, for the remainder of the term for which he was elected, if such ward shall be the whole or a part of the ward in which he was elected.

“At the annual election of 1891 a supervisor shall be elected in each of the wards created by this act in which a supervisor does not hold over as above provided.

“At each annual election thereafter the supervisor shall be elected by the electors of each ward, where the term of its supervisor will expire on the first monday of January following.”

Section 506 provides that all elective officers in office when the-act takes effect shall serve out the terms for which they were respectively elected.

It is clear that in construing the provisions of the charter a literal effect cannot be given to all of its provisions, for they are in conflict

There is, as we have seen, a general provision that all elective officers shall serve out the terms for which they were elected, and by § 365, the supervisors in office when the act takes effect shall serve out their respective terms, as hereinafter provided.

Section 365 provides that the supervisor whose -term of office did not expire on the first day of January, 1892, should be the supervisor of the ward created by this act in which he resides on the first day of October,. 1891.

Both Munsell and Smith were at that time residents of the new third ward.

It is clear that a ward is entitled to but one supervisor.

The board of supervisors has been for many years composed óf twenty-five members from the city of Buffalo, and twenty-five members from the towns of the county.

This equality of representation has long continued, and it admits of no doubt that the new charter contemplates a continuance of this equality of representation.

Munsell and Smith cannot both represent the third ward, for that would make fifty-one supervisors in the board.

As between Munsell and Smith, the former is entitled to the office of supervisor of the third ward.o

The whole of the territory included in the old second ward, by the electors of which, Munsell was elected, is now embraced in the-new third ward, with the additional territory taken from the old ward designated by that number.

Munsell represents the second ward by another number, whilst as regards Smith, only a small part of the territory he was elected tp represent is embraced in the new third.

As between the two, therefore, it .would seem reasonable thatMunsell should be held to be the supervisor of the new third ward; and unless Smith can represent a ward in which he does not reside, he has been legislated out of office.

That was within the power of the legislature.

Acts having that effect have been passed, and held to be valid. People v. Morrell, 21 Wend., 563; Matter of Gertrum, v. Board of Supervisors, 109 N. Y., 170; 15 St. Rep., 69.

One of the purposes of the charter was to provide for the election of-successors to those supervisors whose terms should expire^ in January, 1892, by limitation, such election to take place in-those newly created wards, which would otherwise have no representation in the board when that time should arrive, and further provides for the election in a ward within which no supervisor resided on the 1st of October, 1891.

In construing this act we must assume, in the absence of provisions showing that to be the clear intent of the legislature, that it was not intended to make a radical change in the theory and scheme of the elective offices of the state.

The general statutes of the state provide that a supervisor shall reside in the town which he represents.

By 1st Revised Statutes, 8th ed., m. p. 122, § 34, every office becomes vacant on the incumbent ceasing to be an inhabitant of the state; or if the office be local, of the district, county, town or city for which he shall have been chosen or appointed, or within which the duties of his office are required to be discharged.

The wards of the city and towns of the state, for the purposes of the question here presented, are the same.

We know of no exception to the rule that an elective officer must be an elector and resident of the district which he represents.

The position of Smith as a representative in the board of supervisors of a ward in which he is not an elector or resident would under our system of government be novel and unique.

Had he desired to represent the fourth ward the course for him to have pursued is clearly indicated in § 365.

He should have moved into a part of the new fourth taken from the old third.

Such removal would not have affected his right to represent the old third for the remainder of 1891, for the division of the city into new wards did not take effect until- January, 1892.

His attention was timely called to this question, and he declined' to change his domicil, entertaining, it seems, the opinion that he could continue to represent the new third ward. .

Obviously, the situation here presented did not occur to the minds of those who drew the charter.

The effects and consequences of a construction of a statute are to be considered, and where from a literal interpretation an effect would follow obviously contrary to the whole intent and spirit of the statute, the intent and not the literal meaning must be regarded.

We do not think the question here presented is free from doubt, and -it is not surprising that the board of supervisors, acting upon the advice of their competent counsel, should have taken a differ: ent view of the question, but our conclusion that Hull is entitled to the office and emoluments of supervisor of the fourth ward is, we think, in consonance with the provisions of the charter.

It is suggested by the counsel for Munsell and Smith that the decision of the question by the board of supervisors is conclusive, as they are made by the statute judges of the qualifications of their members.

We do not accede to this contention.

The statute has not conferred upon them the power to decide the question here presented.

The plaintiff is entitled to judgment that only one of the defendants is legally entitled to the office of and to act as supervisor for one ward in the city of Buffalo; that the defendant, Frank H. Hull, is entitled to the office of supervisor of the fourth ward and to the emoluments thereof, and that the defendant, Thomas H. Munsell, is entitled to the office of supervisor of the third ward and the emoluments thereof.

Dwight, P. J., Macomber and Lewis, JJ., concur.