text:
    William A. Dexter, Resp’t, v. Village of Fulton, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed May 4, 1895.)

    1. Pleading — Complaint—More definite.
    Where, in an action against a village for personal injuries caused by the defective condition pf a bridge, the defendant desires that the complaint shall contain a more accurate description oí the place where the injuries occurred, or of the negligence of the defendant in respect thereto, its remedy is to have the complaint made more definite and certain.
    3. Municipal corporations — Streets—Liability.
    The duty of a municipal corporation to repair arises after actual notice of the existence of defects in the street, or after such a lapse of time as will justify the imputation of negligence if the defect is not discovered, and what is such reasonable time is a question for the jury.
    Appeal from a judgment entered on a verdict in favor of plaintiff.

      Sheldon B. Mead, for app’lt; Charles F. Boyd and O. M. Reilly, for resp’t.
   Hardin, P. J.

Judgment was entered upon the verdict on the 27th day of October, 1894, in the clerk’s office of Oswego county. A notice of appeal was prepared on the 10th of November, 1894, to the effect that the defendant appeals “from the judgment of the supreme court herein, entered in the cleric’s office in the county of Oswego on the 27th day of October, 1894, in favor of the plaintiff and against the said defendant.” No appeal is found in the appeal book from any order denying motion for a new trial. No order is found in the appeal book denying motion for a new trial. The case does not show that it contains all the evidence given at the trial. The appeal therefore brings up “for review only the -exceptions taken on the trial.” Wright v. Vulcanizing Co., 76 Hun, 340 ; 59 St. Rep. 444.

1. Plaintiff’s complaint alleges that the “unsafe, defective, and dangerous condition of said bridge or culvert was caused by the negligent conduct of said village and its officers in the management and care of its streets, bridges, culverts, and sidewalks.” It -also alleges “that said bridge or culvert was defective, dangerous, unsafe, and out of repair, in the following respect or particular: The planks were rotten, loosely laid together, out of repair, weak, and unsafe." And the complaint further alleges “that such unsafe, defective, and dangerous condition of said bridge or culvert was caused by the negligent conduct of said village and its officers in the management and care of its said streets and bridges, culverts and sidewalks.” And it also further alleges “that said bridge or culvert was dangerous, unsafe, and out of repair, in the following respect or particular: The planks were rotten, laid loosely together, out of repair, weak, and unsafe." We think, if the defendant desired that the complaint .should contain a more accurate description of the place where the injuries occurred, or the negligence of the defendant in respect thereto, its remedy was to have the complaint made more definite and certain. Sherman v. Village of Oneonta, 49 St. Rep. 267; affirmed, 142 N. Y. 687; 60 St. Rep. 867.

2. In considering the liability of ar municipal corporation in a case somewhat like this, it was said in Gorham v. Village of Cooperstown, 59 N. Y. 660, that “some neglect or omission of duty in repairing defects or removing obstructions must be established, in order to charge the municipality with the consequences of any defects in, or obstruction of, the thoroughfares within the corporation.” And in Rehberg v. Mayor, etc., of New York, 91 N. Y. 143, it was-said that the duty to repair “arises after actual notice of its existence, or after such a lapse of time as would justify the imputation of negligence, if the defect or obstruction had not been discovered, and what is such reasonable time is a question for the jury.” The-doctrine of those cases was stated and followed in Sherman v. Village of Oneonia, supra. We think the evidence presented upon the trial tended to make out a case of negligence against the defendant, within the principles of the cases to which reference has already been had, and that the trial judge committed, no error in refusing to nonsuit the plaintiff. Nor do we think it was error to refuse to charge “that there was no evidence in the case of any notice to the village of the defect upon which the cause of action was predicated, and no evidence showing, or tending to show, how long the defect complained of had existed prior to the accident.” We think the comments of the trial judge in declining to so charge were proper. The case of Herrington v. Village of Phoenix, 41 Hun, 270, is unlike the case in hand. In that case there was a plank displaced, and" it was said, “It might have been displaced by a trespasser, or accidentally, by the last team crossing the bridge before the accident.” And it was further said, “Nor were any facts tending to establish negligence on the part of defendant’s, officers, except that at the time of the accident a plank was displaced,” given. In the case in hand, upon the evidence presented, it was for the jury to determine whether the defendant or its officers had been guilty of negligence in leaving the bridge in an unsafe and insecure condition. Hart v. Bridge Co., 80 N. Y. 622 ; Goff v. Village of Little Falls, 47 St. Rep. 729, and cases there cited. In Pomfrey v. Village of Saratoga Springs, 104 N. Y. 465; 5 St. Rep. 802, it was said:

“They do not fill the measure of their responsibility, however, by acting simply when they have actual notice; but they owe to-the public the duty of active vigilance; and when a street or sidewalk has been out of repair for any considerable length of time,, so that by reasonable diligence they could have notice of the defect, such notice may be imputed to them.”

We have discovered no error in any of the exceptions taken by the defendant at the trial, and it follows that the verdict should be sustained. Judgments affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Stover, J.

license: Public Domain

text:
    Charles L. Blakeslee, Resp’t, v. Jean B. Cattelain et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed May 14, 1895.)

    Attachment — Affidavit—Sufficiency.
    An affidavit for an attachment, which states that the defendants were about to-receive a sum of money and to place it so that it could not he found, and that their agent had declared that they would do this, is sufficient to call upon the judg-e, to whom the application is made, to exercise his judgment as to its sufficiency, and his conclusion is binding upon the-appellate court.

      Appeal from an order denying a motion to vacate on attachment on the application of a party acquiring an interest after the levy.

      Paul E De Fere,for app’lt; George L. Stedman (George W. Stedman, of counsel), for resp’t.
   Stover, J.

The affidavit upon which the attachment was granted, after setting forth the usual facts as to the cause of action, stated:

“That the defendants are about to remove their property from the state, or secrete property with intent to defraud their creditors; that a sum of money is to be paid to the defendants, and they are arranging to place the same so that the same cannot be found, that their agent has so declared, and this deponent knows that they are busy to-day to accomplish this.”

The property attached was a deposit of $2,000, which became due to the defendants upon the determination of an action in which one Buck was plaintiff and the defendants herein was defendants. The attachment was issued September 20th and levied September 21st, the attached property being then in the custody of the clerk of Rockland county. On the 26th day of September an assignment of the judgment against Buck was made by Oscar Oattelain for himsetf and the other defendants, the defendants constituting the firm of J. B. Oattelain & Sons. The assignment was to Nester Oattelain, a son of one of the defendants, and brother of others, for a consideration of $100, expressed in the assignment. The motion to vacate the attachment was made upon the papers upon which the attachment was issued, and additional affidavits, showing the assignment and proceedings in the care of Buch v„ Oattelain, and some proceedings had subsequent to the levying of the attachment. There was no defense interposed in this action, and judgment had been entered by default before the hearing of the application by the county judge. The appearance by the attorney states that he appears for Wester Oattelain as a lienor subsequent to the granting of the attachment, and the notice of motion is signed, “Attorney for Wester Oattelain, subsequent lienor.” The affidavit of Wester Oattelain states that he is the sole owner of the judgment against Buck, and the defendants covenant in the assignment that the sum of $1,270 is due upon the said judgment.

I think the order of the county judge should be affirmed. It may be that, had the application been made to this court, or to either of the members thereof, more evidence of the facts with regard to the disposition of the property by the defendanis would have been required ; and it may be that an attachment would have been refused upon that affidavit; yet we cannot say that there was not sufficient to give the county judge jurisdiction of the matter, and to permit him to pass upon the question of the sufficiency of the affidavits. We must assume that the facts therein stated are true, viz., that the defendants were about to receive a sum of money, and to place it so that it could not be found, and that their agent had declared that they w.ould do this, Now, it cannot be said that, if the agent of the defendants had made such a declaration, it is not some evidence of the facts stated ; and while, perhaps", it is slight, and .not as convincing as might be required under some circumstances, yet it was sufficient to call upon the county judge, or whoever passed upon the application in the first instance, to exercise his judgment as to its sufficiency, and his conclusion thereon .should be binding on this court. We ought not to interfere with that judgment, unless it appears that he acted under a misapprehension of the facts, or without jurisdiction to pass upon the facts. The evidence on the part of the defendants on the application to set aside the order shows that for the consideration of .$100 an assignment was made to the son of one of the defendants, and a brother of the others, of a claim upon which the defendants themselves covenanted there was $1,270 due, and to secure which a -deposit of $2,000 had been made. This, of itself, appearing from the moving papers before the county judge, in connection with the affidavit of the plaintiffs, would seem to be sufficient to warrant the county judge in denying the application, for lie would have the right to consider whatever was before him at that time; and it would appear almost conclusively that not only bad the intention to transfer the money beyond the reach of creditors existed at the time the warrant of attachment issued, but that, in furtherance of tfyat design, the assignment to the son and brother for a nominal consideration had been actually made before the motion herein to vacate the attachment.' Standing without explanation, I think it must be held that the papers show a design to place the moneys deposited as security for the judgment in the Buck Case beyond the reach of the plaintiffs, creditors of the defendants, who have since obtained judgment for their claim. While every care ■should be taken to see that the provisions of the statute are carried out, and that the property of the indvidual should be secure, and his right to its enjoyment amply protected, yet the court ought not to be eager to prevent the enforcement of concededly legal and just claims of creditors in order to aid persons who voluntarily take the least questionable assignments of claims, of the character ■of which they must be charged with having notice, and particularly when such questionable transactions are between members of the same family.

The order of the county judge should be affirmed, wiijh $10 costs and disbursements.


text:
    The People, Resp’t, v. James Altman, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 14, 1895.)

    Indictment — Forgery—Duplicity.
    An indictment, which alleges that defendant forged a check and, with intent to defraud, offered it in payment for goods, does not charge two distinct and independent crimes.
    Appeal from a judgment of conviction for forgery in the second degree.

      A. Armstrong, Jr., for app’lt; Lyman Jenkins, Disk Atty., for the People.
   Stover, J.

The appeal is from a conviction of forgery in the second degree, had at the Warren county sessions, December, 1894. The indictment is as follows:

“ The said James Altman, on the 5th day of September, 1894, at the village of Glens Falls, in this county, feloniously and falsely make, forge and counterfeit a certain check or order on the Glens Falls National Bank for the payment of money, in form and manner and to the tenor and effect following; that is to say:
“ ‘Glens Falls, N. Y., Sept. 6,1894.
“ No. 4. Glens Falls National Bank, pay to bearer ($25) twenty-five dollars.
“ ‘James Altman.’
“And with intent to defraud one Rufus M. Cole did feloniously, upon the back of the above-mentioned check, falsely make, forge and counterfeit the name, indorsement and signature of one Henry H. Bush, the same purporting to be the act of said Henry H. Bush, whereby a pecuniary demand against said Bush to the amount and value of twenty-five dollars, purported to have been created, which said falsely made, forged and counterfeited signature in tenor and effect is as follows, ‘ H. H. Bush,’ and offered the same in payment for certain goods, wares and merchandise, which he, said James Altman, had at the time and place above mentioned purchased of said Rufus M. Cole, with intent to defraud said Cole, against the form of the statute in such case made and provided, and against the peace of the people of the state of New York, and their dignity.”

Defendant demurred on the ground that more than one crime was charged in the indictment, and that two separate and distinct crimes were charged in the indictment. The demurrer was overruled. The defendant pleaded not guilty. The defendant moved an arrest of judgment on the same grounds as was the demurrer, which was denied, and appeal is taken to this court.

I think the conviction should be affirmed. The indictment itself would have been complete without the allegation of the offering of the forged check to Cole, and yet evidence of the offering of the check to Cole with intent to defraud might be proper, as a part of the transaction, and as evidence of the intention of the prisoner in the making of the forged instrument. I think the statement in the indictment that the prisoner offered the check to Cole with intent to defraud should be treated as surplusage, and as a statement of evidence which might be given upon the trial.

The other question which was discussed upon the brief of the appellant, viz., that the court erred in admitting the paper found upon the defendant at the time of his arrest, upon the ground that it was- an invasion of the defendant’s right, in compelling the defendant to give evidence against himself, was fully discussed and finally settled in the case of People v. Gardner, 144 N. Y. 119; 63 St Rep. 21, and no discussion of it is necessary here. I can discover no error which tended to prejudice any substantial right of the defendant, and the conviction should be affirmed.

All concur.


author: Hardin, P. J.

text:
    Meyer Rubber Company, App’lt, v. Lester Shoe Company et al., Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed May 4, 1895.)

    Costs — Extba allowance.
    A decision, denying an extra allowance, will not be reversed where the appeal book does not contain all the proceedings had and taken in the action.
    Appeal from an order, denying a motion for an extra allowance.

      T. B. & L. M. Merchant, for app’lt; Carver, Deyo & Jenkins, for resp’ts.
   Hardin, P. J.

In Burke v. Candee, 63 Barb. 552, it was held, viz.: “ An additional allowance is made by way of an indemnity to the party succeeding in the litigation.” That case was referred! to with approval in Gooding v. Brown, 21 Wkly. Dig. 47; Tolman v. Railroad Co., 31 Hun, 403 ; and Delcomyn v. Chamberlain, 48 How. Pr. 413. Section 3253 of the Code provides that in an action which is “ difficult and extraordinary,” where a defense has been interposed, the court may, in its discretion-, award to any party “a sum not exceeding five per centum upon the sum recovered, or claimed, or the value of the subject matter involved.” The affidavits produced upon the motion tend to indicate that the case was difficult and extraordinary. In Morrison v. Agate, 9 Wkly. Dig. 286, it was said that the determination of the question as to whether an action should be regarded as' difficult and extraordinary, within the meaning of the Code, involves so many considerations which are addressed to the discretion of the judge that the appellate court rarely interferes. The doctrine of that case was approved by this court in Tolman v. Railroad Co., 31 Hun, 403. In the latter case an order had been made for an extra allowance, and the court observed: “To reverse the order, we should be obliged to say that the discretion of the trial judge was improperly exercised.” In the case in hand we are not inclined to say that the discretion of the special term was improperly exercised, as the appeal book does not contain “ all the proceedings had and taken in this action.” It may.be that the order in question was based upon a knowledge possessed by the court “ of all the proceedings had and taken in this action,” and that such knowledge is not revealed fully to us by the appeal book. This feature of the case is rendered probable by the circumstance that the judge who presided at the special term presided at the circuit where the issues of fact were tried, and the trial thereof was presided over by him during the whole of a week of the circuit. We are not prepared to attribute to the judge the views imputed to him found in the affidavits in the appeal book. The circumstances of the trial may have induced him to insert in the order the clause, “ In case motion for a new trial is made or appeal taken by defendants, then and in that case this motion may be renewed.” Inasmuch as no motion for a new trial ‘has been made or appeal taken by the defendants, the privilege given by the clause just quoted is unavailing to the plaintiff. Some force and effect may have been given to the affidavits read by the defendants relating to the intimations theretofore made by the court in respect to the nature and character of the action, which affidavits the plaintiff had no opportunity to answer at the time the motion was heard. Possibly, upon other and further affidavits, the plaintiff may be able to obtain leave to renew the motion, and, having done so, to secure a further determination by the special term of the question whether, under all the circumstances surrounding the question as to the propriety of an extra allowance, the discretion of the court should be exercised in favor of the plaintiff.

Eule 44 of the general rules of practice of the supreme court provides that “ applications for an additional allowance can only be made to the court before which the trial is had.” We think, upon the papers before us, we ought not to pass conclusively upon the question whether the plaintiff is entitled to an extra allowance, as that question cannot well be solved, except upon a mature consideration of “ all the proceedings had and taken ” in the action, and upon all the affidavits presented by either party relating thereto. We therefore affirm the order, without costs, and without prejudice to the plaintiff’s application at special term for leave to renew its motion.

Order affirmed, without costs, and without prejudice to an application by the plaintiff for leave to renew its motion for an extra allowance.

All concur.


text:
    Thomas P. Higgins, Resp’t, v. E. M. Dakin, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed May 4, 1895.)

    Labels — Trade unions — Penalty.
    Where, in an action to recover a penalty for wrongfully using a union label, there is no evidence to indicate that the defendant did not send forward an order for goods to be shipped to the purchaser with just the label he represented, or that he forwarded an order for goods not union made, the evidence is not sufficient to sustain a judgment for plaintiff.
    Appeal from a judgment of the county court, affirming a judgment of the justice’s court in favor of the plaintiff.

      Gibbs & Wilbur for app’lt: W. J. Palmer and Tracy Becker, for resp’t.
   Hardin, P. J.

The plaintiff, in his complaint, alleges that he was a member of a union association of workingman duly incorporated under and in pursuance of the laws of the state of Hew York under the corporate name of the Cigar Makers’ International Union of America.- That the said union or association of workingmen has adopted a certain label or device, intended by them to designate the product of the labors of members of such union, and that copies thereof had been filed with the secretary of state as required by law. The complaint farther alleges that on on the 15th of August, 1893, at the town of Oneonta “the above-named defendant wrongfully did use, sell, and expose for sale certain counterfeit or colorable imitations of the said label or device so-adopted by said union or association of workingmen,” contrary to the provisions of chapter 219 of the Laws of 1893 ; and that by reason thereof the defendant is indebted to the plaintiff in the penalty of the sum of $200. The answer contained a general denial. Chapter 219 of the Laws of 1893 provides, viz.:

“Any person who shall hereafter use, manufacture, display or keep for sale any counterfeit or colorable imitation of any label, mark, name, brand or device adopted by any union or association of workingmen or women, and intended by them to designate the-products of the labor of members of such union or association of workingmen or women, and copies of which have been filed in the office of the secretary of state, as provided by chapter three hundred and eighty-five of the Laws of eighteen hundred and eighty-nine, shall be subject to a penalty of two hundred dollars. * * Under the plaintiff’s complaint, the question to be determined was, did the defendant “use, sell, and expose for sale certain counterfeit or colorable imitations of the said label or device so adopted by said union ?” The evidence given by the plaintiff to establish an affirmative solution of the question was given by Thomas Marsh, who testified that on the 15th of August, at his store, he purchased of the defendant 250 “5th Avenue” and 250 “Agnes Booth” cigars. The witness further testified :
“We spoke about union-made cigars ; that ‘5th Ave.’ were union-made cigars; and gave him an order for 250 as union-made cigars. The ‘Agnes Booth,’I get it job lot. They were to be shipped to me. Subsequently I received the goods. (Package shown witness.) They were contained in package similar to this shown me, and purported to have attached union label on box on each pack. The 250 ‘5th Ave.’s’ were put up in packages of 50 each (5 packages).”

In the course of the witness’ cross-examination he said:

“I bought the goods from Hart &Co., and from them I received these cigars. I knew at time the cigars I was purchasing; I was purchasing them made, and I purchased them as union-made. He did not deliver me any cigars. I knew at time the cigars, I was purchasing; I was purchasing them of Heert & Co. Heert & Co. afterwards sent the cigars to me, and I paid Heert & Co. for the cigars. I cannot say that defendant ever displayed union label tome. I do not remember that defendant ever delivered package with union label on. I supposed he was acting as agent. ‘Agnes Booth’ has no label on. To my best recollection, I asked Dakin if the ‘5th Ave.’ cigars were union-made, and he said ‘Yes, they would have the blue label on.’ I cannot say that defendant exhibited blue label to me.”

The witness, continuing, said:

“Defendant never delivered a box of cigars to me with union label on.”

At a later stage of the case the witness testified :

“The best of my recollection is that I did ask Dakin if the ‘5th Avenue’ cigars were union-made, and he replied they were, and they would have the blue label on. * * * To the best of my knowledge, recollection, and belief, there was something said about the cigars having the blue label on by Dakin at the time I purchased them."

After this evidence was given, the defendant moved for a non-suit, which was denied. We think the evidence was insufficient to establish that the defendant manufactured, displayed, kept for sale,, or used “any counterfeit or colorable imitation of any label.” A fair consideration of his testimony requires that that part which makes in favor of the defendant should be considered as well as that which might be construed as being adverse to him. There is no evidence to indicate that the defendant did not send forward an order for goods to be shipped to the purchaser with just the label he represented, or that he forwarded an order for goods not union-made. Inasmuch as this is an action to recover for a penalty, evidence should be required of the plaintiff to establish that the defendant himself has clearly violated the statute which gives a right to a recovery. Plank-Road Co. v. Parkill, 50 Barb. 601. The case in hand is quite unlike People v. Adams, 3 Denio, 190. If this action had been brought againsf Heert & Co., the case cited would be more in point.

2. The trial court erred in overruling objections to questions put to Marsh in the following language : “Q. State, at time you purchased these cigars, whether or not you understood and "believed they were union-made cigars, and that the label attached to pack was the genuine label of the Cigar Makers’ Union. Wilder v. Peabody, 21 Hun, 376; In re New York, W. S. & B. Ry. Co., 33 Hun, 234, and cases there cited. The foregoing views lead to a reversal. Judgment of the county court affirming a justice’s judgment reversed, with costs, and the judgment of the justice’s court reversed, with costs. All concur.


author: Dykman J. Cullen, J.

text:
    Emma Bryant, App’lt, v. Louis J. Grant et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed May 13, 1895.)

    1. Supplementary proceedings — Receiver.
    A claim of the judgment debtor for unliquidated damages is property in such a sense as to authorize the appointment of a receiver in supplementary proceedings.
    2, Same.
    _ A receiver in supplementary proceedings should not sell a claim for unliquidated damages in favor of the judgment debtor, to recover which an action by him is pending, but should prosecute it to judgment.
    Appeal from an order substituting the purchaser upon a receiver’s sale in place of the original plaintiff.

      Alfred C. Cowan, for app’lt; William A. Sweetser, for resp’t,. Sterling Wallace.
   Dykman J.

This is an appeal from an order substituting Sterlling Wallace as plaintiff in this action in the place and .stead of Emma Bryant. A brief historical recitation will facilitate our approach to the question involved in the appeal. In the forepart of the year 1892 the plaintiff commenced an action in the supreme ■court against Louis J. Grant, Townsend FT. Shotwell, Thomas P. Payne, and Mary E. Payne for conspiracy, fraud, and deceit in relation to the exchange of certain real property in city of Brooklyn, and claimed damages therefor in the sum of $8,000. The cause was tried at the circuit before a jury, and a verdict was rendered in favor of the plaintiff against the defendant Grant, against the plaintiff in favor of the other defendants. A judgment has been entered against the plaintiff in favor of the defendants who succeeded against her at the trial for the sum of $538.81, and the verdict in her favor against Grant has been set aside by the court. Thereafter the cause was again placed upon the calendar for trial, .and inquest was taken against the defendant Grant, in favor of the plaintiff for $6,000. A motion, subsequently made, to set aside the inquest, remains undetermined, so far as the appeal papers show. On the 10th day of January, 1894, the plaintiff- was examined in the proceedings supplementary to execution which had been issued against the property of the plaintiff upon the judgment against her in this action in favor of some of the defendants as already stated. Upon that examinad on the plaintiff said she had this claim of $8,000 against Grant, and that the claim was then in suit. She stated further that she had no other property. Thereupon a receiver of the property of the plaintiff was appointed, who was authorized by an order of the court to sell at public auction the claim of the plaintiff against the defendant "Grant. In accordance with such order of sale, the claim was sold at public auction to Sterling Wallace, who made a motion to be substituted as plaintiff in this action in the place of Emma Bryant, and his motion was granted. The appeal is from that order, as already stated. Such is the record before us, and it manifests an unmistakable design to perpetrate a fraud upon the law and a fraud up-' •on the court. The evident purpose of the proceeding for the appointment of a receiver was to circumvent the plaintiff, and deprive her of the power to prosecute her claim against Grant, and it is not too much to say that the success of the scheme would be •a reproach to the administration of justice. Fortunately, however the effort must teminate in failure, In the first place, the facts disclosed upon the examination of the plaintiff were entirely in-, sufficient to authorize the appointment of a receiver. The claim of the plaintiff for unliquidated damages is not property in any sense, and no order for the appointment of a receiver can be made until property applicable to the payment of the judgment has been discovered. Hancock v. Sears, 93 N. Y. 81. Indeed, these defendants, instead of being entitled to an order apppointing a, receiver, were liable to pay the plaintiff costs of the proceeding for a failure to discover property applicable to the payment of their judgment. Code Civ. Proc. § 2456. In second place, if the •claim is property in any sense, it is neither in the possession nor under the control of the plaintiff, and it is substantially disputed. Supplementary proceedings were inaugurated and regulated by the original Code of Procedure as a substitute for a creditors’ bills in the old court of chancery. They are in the nature or an equitable action, based upon a judgment, and new facts in addition thereto. They furnish a simple and summary method for the collection of a judgment from property which cannot be reached by execution. Griffin v. Dominguez, 2 Duer, 658; Allen v. Starring, 26 How. Pr. 59; Lynch v. Johnson, 48 N. Y. 27. But neither these proceedings nor the old judgment creditors’ suit were designed to reach a cause of action for a tort. They authorize the pursuit of nothing but property. The affidavit upon which the proceedings are based must state the judgment debtor has “property” which he refuses to apply to the satisfaction of the judgment How can that allegation be perdicated upon a mere claim for damages ? Then, if it appears that the judgment debtor has such “property,” a judge may make an order requiring him to appear, and answer respecting his “property.” Then, if “property” is discovered, a receiver may be appointed of such “property.” Therefore nothing but property can be affected in these proceedings, and a claim for 'damages for a tort may not be even a cause of action. In no view is it property within the meaning of the statute relating to proceedings supplementary to execution. 10 Abb. Dig. p. 717, No. 134, and cases cited. Moreover, as we have seen, these supplemental proceedings are in the nature of an equitable action, and therefore nothing inequitable should be permitted therein. Yet it would be not only inequitable, but unjust, to deprive the plaintiff of her right to prosecute her action for damages against the defendant. She claims $8,000, and she has secured a recovery twice. The record before us discloses the perpetration of a'gross fraud upon the plaintiff, and her recovery must not be jeopardized, or her proceedings embarrassed. She must proceed with her suit untrammeled by interference. There will be ample time and opportunity for the court to direct the payment of the judgment against the plaintiff from the judgment in this action when it is recovered. Justice can thus be wrought to all parties.

The order should be reversed, with $10 costs and disbursements, and the motion should be denied, with $10 costs.

Cullen, J.

I dissent from so much of the opinion of my associate as holds that the claim in this action for a tort "to her estate is not property that would pass to a receiver. But I am clear that a fraud on plaintiff’s right has been effected here. Her claims for damages should not have been sold out, but have been prosecuted, and the debt paid out of any recovery. This was held to be the duty of a pledgee of promissory notes, Wheeler v. Newbould, 16 N. Y. 392, and justice requires the application of a similar rule in this case. It was discretionary in the court whether to grant the substitution. I think the order should be reversed, and motion denied, in order that plaintiff may have an opportunity to apply to vacate both the order the receiver to sell and also the sale made under the order, without costs to either party, and with leave to petitioner to renew the application in case plaintiff fails. to obtain such relief. ,

Brown, P. J., concurs with Cullen, J.


author: Dykman, J. Cullen, J.

text:
    John Sutherland, Resp’t v. City of Brooklyn, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 13, 1895.)

    Taxes — Sale—Surplus.
    Where certain lands in Brooklyn, which were in the possession of scmortgagee, were sold for taxes, producing a large surplus, and were subsequently redeemed by and in the interest of the purchaser at the tax sale or in that of his assignee, and on the same day the city paid the whole surplus to the assignee as the person legally entitled thereto, the mortgagee in possession cannot maintain an action to recover from the city this payment of the surplus, realized on the tax sale, on the ground that the surplus was his property.
    Appeal from a judgment in favor of plaintiff.

      Albert G. McDonald, for app’lt; A. J. Perry, for resp’t.
   Dykman, J.

This suit was brought to recover surplus money arising from the sale of a lot of land in the city of Brooklyn. The-cause was tried before a judge without a jury. His decision was in favor of the plaintff, and the defendant has appealed from the judgment thereon.

The facts essential to an understanding of the case are these: On the 11th day of April, 1876, Eliza Richardson was the owner of the lot which produced the surplus involved, and on that day she executed a mortgage thereon-, in conjunction with her husband, to the plaintiff, to secure the payment of $4,200. Both of the mortgagors are now dead, and nothing has ever been paid on.the mortgage. On the 11th day of July, 1888, the premises were sold for arrears of taxes to John Gr. Byrne for $3,500. -That sum was $3,407.47 above the amount due to the city for taxes, the sum so due for taxes being $92.53. A certificate of such sale was-thereupon issued to John G. Byrne, who afterwards assigned the same to John McNamara. Notice of such sale was served upon the plaintiff on the 2d day of November, 1888. Thereafter, and on the 19th day of August, 1889, the property was redeemed from such sale for taxes by S. J. Tormey, for John Gr. Byrne, by the payment to the register of arrears, for the use of John McNamara, the sum of $1,082.98; that being the amount paid by the purchaser, Byrne, at the sale, and ten per cent, thereon, with interest, on the aggregate amount at the rate of fifteen per cent., and the expenses of the notice served upon the plaintiff, minus the amount of surplus money received upon the sale for taxes, which was then in the hands of the treasurer. That- sum of $3,407.47 was allowed and credited to the person redeeming in pursuance of the statute, Tlien, on the same day, August 19, 1889, all the money remaining in the hands of the treasurer or in the possession of the city to the credit of such tax sale was paid over to John McNamara-The statement in figures is this:

The property sold for...................•.........$3,500 00
Ten per cent, on that sum........................ 350 00
Interest at fifteen per cent......................... 638 45
Service of notice................................ 2 00
Total......................................$4,490 45
Amount paid to redeem.................$1,082 98
Suplus................................ 3,407 47
--$4,490 45

The plaintiff has been in possession of the premises as mortgagee for many years, and on the 21st day of October, 1889, he made a demand upon the city for the payment to him of the surplus arising from the sale for taxes. The demand did not receive compliance, and this suit was brought for the recovery of the money.

The action is prosecuted upon the assumption of the illegality of the redemption, because it was in the interest of the purchaser or his assignee, who had no right to receive credit for the amount of the surplus. Then upon that theory the plaintiff builds his claim that the surplus should have remained in the possession of the city to his credit, and for his benefit as mortgagee. The plaintiff can claim no other or greater rights in the premises in question than such.as pertain to a mortgagee in possession. He had no attribute of ownership in the land, and no title or estate therein whatever. He has the right to remain in possession until the amount due upon his mortgage is paid. The following extract from the opinion of the commission of appeals in the case of Trimm v. Marsh, 54 N. Y. 606, states the law upon the subject with force and perspicuity : .

“ Before taking possession, the mortgagee has no title in the lands. How can the mere possession change the title from the mortgagor to the mortgagee, or in any way diminish the estate of the one or enlarge the estate of the other? Before taking possession, the mortgagee had a mere lien upon the real estate pledged for the security of his debt. After possession, he has in his possestion the property pledged as his security, the title remaining as it was before. The mortgagor’s title is still a legal one, with all the incidents of a legal title subiect to the pledge, and the mortgagee’s interest is still a mere debt secured by the pledge. If the mortgagee should die in possession, the debt would still go to his personal representatives, to be administered as personal estate, and the mortgagor’s title would go to his heirs. Payment, or even tender, would destroy the mortgagee’s light to retain possession, and would enable the mortgagor to maintain ejectment to recover possession. The mortgagee, in such case, so far from having any title, holds the land of the mortgagor, and is liable to account to him for the rents and profits-”

If, therefore, we assume that the redemption of the premises was invalid, the assumption will not benefit the plaintiff. If he had no title in the land, it is difficult to see how he acquired or had any title to the surplus arising from the sale of the land. The claim of the plaintiff is that he owned the surplus, and that it was held in trust for him by the city, and he must recover upon that theory or fail. The provision of the statute is that all moneys paid to the registrar of arrears upon sales for taxes shall be deposited by him with the treasurer of the city of Brooklyn, and the surplus, if any, shall be held for the use of, and paid over to, the person legally entitled, upon his establishing his rights thereto. Laws 1888, p. 986. It thus appears that the surplus in this case was held for the use of the person entitled thereto, and the plaintiff must establish his right to the money before he is entitled to recover it. We have already seen that he had no title to the land, and it must follow that he had no estate or property in the surplus which was the proceeds of the land. He never had any tight or interest in the land, except such as was secured by his mortgage, and that gave him a lien only. The most favorable position, therefore, which the plaintiff can claim to occupy is that of mortgagee, and as he could not recover the property. covered by its mortgage, it is difficult to see how he can recover the proceeds of a sale thereof.

There is another reason why the plaintiff cannot recover upon the case presented by this appeal. As mortgagee in possession, the plaintiff can retain the premises until his mortgage debt has been paid, and no longer; and he is liable to account for the rents and profits. He has been in possession for twenty years, and the rents and profits during that period may have been sufficient to discharge the mortgage. At all events, it does not appear that they Were insufficient, and therefore it is not proven that there is anything due upon the plaintiff’s mortgage. Moreover, this suit was unnecessary. The statute has furnished the plaintiff with a remedy which will protect him, and the city also. There has been no deed delivered to the purchaser at the sale of the premises, and the plaintiff, as mortgagee, has the right to redeem the land at any time before a deed has been delivered. Laws 1888, chap. 583, tit. 8, § 5. That is upon the theory that there has been no redemption, and, if there has been a regular redemption, of course the plaintiff cannot recover in any view. In any view, the judgment works injustice, for under it the plaintiff receives the money upon his mortgage from the city, and also holds it for the full amount against the property. The judgment should be reversed and a new trial granted, with costs to abide the event.

Cullen, J.

This case is a peculiar one. It could not arise except where the tax purchaser discovered that he bought the property at too high a price. I am not prepared to say that in such a case the owner or parties interested in the land may not insist that the sale should stand, and take the surplus arising on the sale instead of redeeming the property. If this view be correct, the owher’s right to an election could not be defeated by an unauthorized redemption by a stranger.

I dissent from so much of the opinion of Justice Dykhan as holds that the plaintiff, being only a mortgagee, is not a person legally entitled to the surplus under the charter provisions. The taxes were paramount to the lien of his mortgage. In Brooklyn, where r sale is made of the fee, a tax sale would divest the plaintiff of his lien on the land, but such lien would as plainly attach to the surplus arising on the sale as in the case of a sale under a prior mortgage.

But I concur in the result reached by my associate on two grounds : First. The sale has not yet become absolute, and may never become such. It appears from the complaint that some of the owners of the fee are infants. They have not been served, with notice of the sale, and have no guardian. Under § 7, tit 8, Charter of 1888, even had notice been served, the right to redeem would not expire till one month after arriving at age, or the appointment of a guardian of their estate. The plaintiff cannot defeat their right to redeem, and until the time for redemption has expired the surplus must be retained by the city, to be credited upon a redemption as prescribed by the charter. Second. Even if all parties interested in the land had affirmed the sale, a recovery could not be had against the city for the surplus, except on condition of a conveyance to the city of the land sold. The action to recover the proceeds of the sale of the land would plainly be inconsistent with any claim to the land itself.

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

Brown, P. J., concurs in the result.


text:
    Lizzie J. Canda, Resp’t. v. John Totten, App’lt.

      (Supreme Court, General Term,Second Department,

      Filed May 13, 1895.)

    Statute of frauds — Paroi agreement relating to land.
    An agreement, whereby a party undertakes to attend a public sale of land, buy the same thereat, pay for it with his own money, take the title in his own name for the benefit of another and then convey the property to the latter, is void under the statute of frauds.
    Appeal from a judgment entered in favor of plaintiff.

      William C. Davidson, for app’lt; Seymour & Hopkins, for resp’t.
   Dykman, J.

It is the object of this action to obtain a judgment which shall require the defendant to convey to her four lots of land in the city of Brooklyn. The cause has been tried before a judge of this court, without a jury, and decided in favor of the plaintiff, and the defendant has appealed from the judgment entered upon such decision. According to the claim of the plaintiff, the facts of the case are these: The defendant made a paroi agreement with the husband of the plaintiff, who was acting for her, that he (the defendant) would attend a sale of real property which was to be made by the assignee of Canda and Kane, and buy the same for her, take the title therefor in his own name, and then convey the same to the plaintiff. There was no written agreement, and the defendant was furnished with no money with which to make the purchase. The defendant attended the sale, which was at public auction, and bought four parcels of real property, for $540. He paid the auctioneer’s fee of $20 on each lot, and twenty-five per cent, upon the amount of his purchase, with his own checks, — one for $80, and the other for $185. That was on the 15th day of February, 1894; and on the 27th day of the same month the defendant paid the balance of the purchase money, and received deeds of conveyance for the .'lots in bis own name. On the following day the husband of the plaintiff went to the office of the defendant, and handed him an envelope containing $620, and gave him $10 besides. There is no proof that the defendant consented to accept the money, and he says he did not consent to do so. He took the money, and placed it in his bank. The husband says he then requested the defendant to make a deed to the plaintiff. We have taken the version of the paroi agreement and of this last transaction respecting the money left with the defendant from the testimony of the plaintiff’s husband, because it is the most favorable to her, although the defendant, in his testimony,gives a very different version of both. In respect to the other facts which we have stated there is no dispute.

It is to be observed, preliminarily, that there is no consideration shown for the agreement. There was -neither loss nor harm to the plaintiff, nor benefit to the defendant. The plaintiff surrendered no right, and the defendant acquired no privilege, thereby. The plaintiff was at liberty to attend the sale, and buy the property, after the agreement; and it was the right and privilege of the defendant to attend the sale, and buy the property, without the agreement There is no proof that the plaintiff omitted to attend the sale or to procure the attendance of others in reliance upon the agreement There was no allegation in the complaint, and no proof upon the trial,-of any fraud practiced upon the plaintiff by the defendant.

The question presented for solution under the foregoing facts, is whether a court of equity will enforce the performance of a paroi agreement between these parties whereby the defendant undertook to attend the public sale of the land in question, buy the same thereat, pay for it with his own money, take the title in his own name for the benefit of the plaintiff, and then convey the property to the plaintiff. The answer to the question depends primarily upon the contract. If that be valid, the answer will be in the affirmative ; if invalid, in the negative. The contract must be tested by the statutes relating to fraudulent conveyances and contracts in relation to lands.

The particular sections applicable to this case are these:

“Sec. 6. Ho estate or interest in lands, other than leases for a term not exceeding one year, nor any trust or power, over or con- ’ cerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the party creating, granting,assigning, surrendering o.r declaring the same, or by his lawful agent, thereunto authorized by writing.”
“Sec. 8. Every contract for the leasing for a longer period than one year, or for the sale of any lands, or any interest in lands, shall be void, unless the contract, or some note or memorandum thereof, expressing the consideration, be in writing, and be subscribed by the party, by whom the lease or sale is to be made.” 2 Eev. St. 135

As we have already seen, the agreement was that the defendant should convey the land in question to the plaintiff after he had bought it, and that contract falls directly under the condemnation of section eight of the statute, which declares that such contracts shall be void unless the contract or a note or memorandum thereof be in writing. The agreement between the parties was therefore void, and the defendant was under no legal obligation for its performance. Neither can it be successfully claimed that the agreement created a trust which the defendant was bound to •execute, because the sixth section of the statute condemns paroi trusts in land, and no such agreement relating to such trusts will ever be enforced in equity. Sturtevant v. Sturtevant, 20 N. Y. 39. Even where courts of equity intervene to enforce the performance on the ground of fraud, such intervention is not for the purpose of upholding or enforcing the paroi trust, but for the purpose of relieving against fraud. That end is attained by treating the perpetrator of the fraud as a trustee ex malifldo, and not a trustee by virtue of the paroi agreement. A breach of such a contract for the sale does not create a trust, and a party commits no fraud by refusing to perform a void contract, because, in a legal sense, he has made no contract.

It is to be observed, further, that the plaintiff here makes no complaint of the conduct of the defendant in making the purchase of the property. That was in accordance with her version of the agreement. The defendant, therefore, committed no wrong at the .sale. It is the subsequent breach of the contract of which the plaintiff complains, but it cannot be successfully contended that a breach of the promise will create a trust or raise any obligation which the contract itself was sufficient to raise. The foregoing views are sustained, and the principles laid down in the cases of Lathrop v. Hoyt, 7 Barb. 59; Levy v. Brush, 45 N. Y. 590, and Wheeler v. Reynolds, 66 id. 229, and the cases cited in the opinion in the last case. In relation to the case of Ryan v. Box, 34 id. ■307, which is invoked by the plaintiff in this case, it is sufficient to say that the case is so unlike the present one as to be incapable of application here. It is true there was in that case, as in this, an offer of performance; but, if the statute can be avoided in that way, it is practically a nullity. Levy v. Brush, 45 N. Y. 597.

It is further insisted that the contract has been partially performed, and therefore the court should decree its specific performance. We must therefore see whether there has been any performance of the agreement. There has been no payment of the purchase money, for, although the husband of the plaintiff left the money with the defendant, he never agreed to accept if. There can be no payment without an acceptance of the money. The very term implies a concurrence of two minds. The mere tender of payment constitutes an offer only, and all that distinguishes a payment from a tender is acceptance. What money the plaintiff has paid was without the assent of the defendant. She was a volunteer in the matter, and we suppose the term “ part performance,” in the statute, requires action with the assent of both' parties. Especially must that be so in relation to expenditures upon the property. Freeman v. Freeman, 43 N. Y. 39. In any view, however, if there was a payment after the purchase of the defendant was completed, it would be of no avail. Botsford v. Burr, 2 Johns. Ch. 405.

After a most thorough examination we are unable to affirm this judgment. In no view has the plaintiff any cause of action against the defendant. He has not induced the plaintiff to do one single act, and he has not placed himself under any legal obligation to her. He has not induced her to pay any money or make any expenditures in any way or for any purpose. In short, the plaintiff-has lost no money, and has been placed in no disadvantageous position, by reason of any act or inducement of the defendant.

It is claimed on behalf of the plaintiff that the retention of the property by the defendant, and his refusal to convey the same to the plaintiff, was the result of a change of his original purpose; 'but if it was, and he did change his design, he had a legal right to do so. Courts speak for the law, and not for morals. This-case is a good illustration of the wisdom of the statute of frauds. We have adopted the plaintiff’s version of the contract, but the defendant denied in positive terms that he made such an agreement, and his testimony is quite as natural and quite as consistent with the motives which actuate men in affairs of business as that of the plaintiff,s husband. So far as our researches have extended the decisions of the courts in cases analogpus to this have been uniformly in accordance with our conclusion. In the case of Lathrop v. Hoyt, 7 Barb. 59, where the defendant, at the plaintiff’s request, agreed by paroi that he would go and attend a sale of the plaintiff’s.farm under a decree of-foreclosure; that he would bid off the premises, and take a deed in his own name; that be would give the plaintiff an opportunity to repay him the amount of his bid, and have a reconveyance of the premises; and that the plaintiff should have two weeks’ notice to pay the amount, — and the defendant accordingly bid off the farm, and took a deed in his own name, it was-held that the agreement was void, as being within the statute of frauds, and would not support an action. That decision was approved in the case of Wheeler v. Reynolds, supra, more than twenty-five years after it was made, and ten years after the decision of the case of Ryan v. Dox, in the same court.

x Judge Story, in his erudite and exhaustive work on Equity Jurisprudence, promulgated the same rule, in the following language:

“Where a man employs another person by paroi as an agent to buy an estate for him, and the latter buys it accordingly in his own name, and no part of the purchase money is paid by the principal, there, if the agent denies the trust, and there -is no written agree- or document establishing it, he cannot, by suit in equity, compel the agent to convey the estate to him; for that would be decidedly in the teeth of the statute of frauds.” Volume 2, section 1201a. -

The same doctrine was laid down by Chancellor Kent more than sverity five years ago, in the case of Botsford v. Burr, 2 Johns. Ch. 405.

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

Brown, P. J., concurs.

Cullen, J.

I concur. The principle of Ryan v. Dox, 34 N.Y. 307, and Carr v. Carr, 52 id. 251, has no application of this case. In the cases cited, the party in whose favor the agreement to purchase was made had an interest to protect at the sale, and the purchaser under this agreement merely a mortgagee. The distinction is well pointed out in Bauman v. Holzhausen, 26 Hun, 505, decided by the general term of this department. Here the plaintiff had no interest in the property sold. She had not joined in the assignment, and her dower could not divested by the sale. To justify a decree in her favor, she was bound to show such a part performance as would, take the case out of the statute of frauds. This has not been found by the trial court, the decision being based solely on the original contract.

The judgment, therefore, should be reversed, and a new trial had.


author: Cullen, J.-

text:
    Ann Matilda Herriot, as Sole Surviving Executor and Trustee, etc., Pl’ff, v. Alanson J. Prime, Def’t.

      (Supreme Court, General Term, Second Department,

      Filed May 13, 1895.)

    1. Will — Power of sale.
    A power of sale in a will, given to the executors “jointly and not singly,” terminates on the death of either executor.
    2. Same — Section 3642 of Code.
    Section 2642 of the Code does not prevent a testator from placing such limitations on the exercise of powers granted by him as he may deem fit, but merely prescribes a rule applicable in the absense of directions by the testator to the contrary.
    Submission of controversy upon an agreed statement of facts.

      James P. Sanders, for pl’ff; R. E. & R.J. Prime & Burns, for deft.
   Cullen, J.-

This is a submission of a controversy without action. The question presented is whether the plaintiff, as surviving executor and trustee under the will of Warren Herriot,, can convey a good title to lands of which said Herriot died seised. We think the power of sale ceased for two reasons.

The power is given in the following terms :

“I do hereby give to my said executors and trustees (the plaintiff and the testator’s widow, Sarah) full and complete power to sell and dispose of my said real estate, at such time, in such man-" Her, and on such terms as they shall jointly consider beneficial and for the interest of my said estate, with full power to .convey by deed jointly, and not singly, as I might do if living,” etc.

This'power determined upon the death of the widow, Sarah, for section 2642 of the Code (a re-enactment of the Revised Statutes) does not prevent a testator from placing such limitations on the exercise of powers granted by him as he may deem fit, but merely prescribes a rule applicable in the absence of directions by the testator to the contrary. Hyatt v. Aguero, 17 St. Rep. 746; Kissam Dierkes, 49 N. Y. 602.

Secondly, we are of the opinion that the trust estate to which the power was annexed terminated on the death of the widow. The codicil upon which the decision of this question rests is drawn with a confusion of expression approximating to genius. The testator directs that, in case of the birth to him of a child, “ his will shall remain in full force and virtue until the said child arrives at the age of twenty-one years.” If there were no period of time named, it might be thought that this direction was to prevent the effect of the birth of such child on his will, under section 49, p. 65, 2 Rev. St., though such a direction was unnecessary, as provision for the child was made by the codicil. But, when the direction is that the will shall continue in force till the child is twenty-one, it is plain that the testator does not mean his will, but some provision of it. Wo are inclined to think the testator may have referred to the trust created in the first clause of the will, but this is only conjecture on our part; and to sustain the trust after the decease of the widow, we should have to go further, and incorporate a direction to apply the income to the child during its minority. This we cannot do, for the will is barren of any provision in that regard. Therefore, whatever our conjectures may be, we must hold that, under the terms of the will and codicil, the fee of the estate upon the death of the widow immediately vested in the child, subject to be diverted by her death before the age of twenty-one.

Judgment for defendant on submitted case, without costs.

All concur.


author: Cullen, J.

text:
    John Raven, Resp’t, v. William R. Smith, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 13, 1895.)

      ' 1. Former adjudication — Subject-matter.
    A recovery in an action to foreclose a mechanic’s lien for work actually performed does not bar an action to recover for work done under a contract and for a breach of the contract in preventing plaintiff from completely performing.
    3. Evidence — Contract.
    In an action for breach of contract by defendant in preventing further performance, the report made to plaintiff by his workmen that they had been stopped by the defendant, accompanied by proof that the defendant did stop the work, is competent to show the reason why plaintiff ceased the further performance of the contract.
    S. Appeal — New trial. (
    On an appeal from an order denying a motion for a new trial, the general-term can disregard the failure to take exceptions, if it is satisfied that an injustice has been done.

      Reargument.

      James R. Bowen, for app’lt; Frederick W. Clark, for resp’t.
   Cullen, J.

This is an appeal from a judgment entered on the verdict of a jury at circuit and an order denying defendant’s motion for a new trial. The action is to recover for the breach of an alleged contract by which the plaintiff was to do certain grading for the defendant, and the plaintiff claimed both for work done under the contract and for loss of profits on the remaining work, on the ground that he was prevented by the defendant from performing his contract.

The first claim urged by the defendant — that the verdict was against the weight of evidence — is manifestly unfounded. The plaintiff testified to an agreement with defendant to do the work. The defendant admitted that he made an agreement upon the subject, but testified that it was conditional; that is, that he told the plaintiff that he (defendant was about to make a contract with one Jones for the whole work, and that, in case such contract was made, plaintiff must look to Jones. This qualification the plaintiff denied. These were the only witnesses who testified to the terms of the agreement, and, under the circumstances, the statement of the plaintiff is far more probable than that of the defendant.

The claim that the recovery in an action to foreclose a mechanic’s lien for the work actually performed barred a recovery therefor in this action has been decided by this court adversely to the defendant. Raven v. Smith, 71 Hun, 197; 54 St Rep. 94.

The objections to the questioiis as to the relation of Jones to the property to be graded were properly sustained. The questions called for mere conclusions by the witnesses. The defendant was permitted to prove that he had a contract with Jones for the performance of the work. In fact, the whole evidence on this subject would have been irrelevant, except for the testimony of the defendant that plaintiff’s contract was to be subordinate to that of Jones in case one was made. The evidence as to what other work plaintiff had done for Jones, what receipts he had given therefor, and the relations of McHamara to Jones, was properly excluded as irrelevant.

The report made to plaintiff by his workmen that they had been stopped by the defendant, accompanied by proof by plaintiff’s son that the defendant did stop the work, was competent to show the reason why plaintiff ceased the further performance of the contract. If the copy of the notice given by plaintiff was improperly received in evidence, it cannot have harmed the defendant, for it sufficiently appeared by other evidence that, at the time the notice was given, the defendant repudiated any contract with the plaintiff.

The evidence of Fairchild (the engineer) as to the quantity of grading he estimated was competent. The plaintiff lud testified to a contract for grading the triangular plot down to the level of its three boundaries, — the high road, the railroad and the pipe line. The estimate or computation of the engineer was of the quantity necessary to grade the land down to a higher level than that given "by the plaintiff. Of course, the defendant was not bound by Fairchild's, plans of grading; but, assuming that the plaintiff was unable to prove the quantity of excavation required by the contract as he stated it, certainly it was competent to prove a quantity that must necessarily have been included in his contract, and forego his claim to the remainder. Under the testimony of Fairchild, the quantity calculated and stated by him must necessarily have been less than that, required by the contract.

A juror asked the court if the notice given by the defendant the next day, that he was going to hand the contract over to Jones, was binding on the plaintiff. The court answered : “Not unless he consents; no.” To this answer the defendant excepted. We think.it was correct. Certainly, the notice itself could not have bound plaintiff, unless he consented, or unless the contract was subject to the qualification testified to by the defendant. If the defendant thought the answer was insufficient, he should have asked the court to charge as to the effect of the notice on the assumption that the jury found that the contract was qualified. Criticism is made that the court, in its charge, expressed its opinion on the questions of fact involved, but no exceptions were-taken by the defendant as to such expressions. On the appeal from the order denying a new trial, we could disregard the failure to take exceptions if we were satisfied that an injustice had been done, but we cannot say that the verdict was wrongs

The judgment and order denying motion for a new trial appealed from should be affirmed, with costs.


text:
    Brooklyn Elevated Railroad Company, App’lt, v. John Flynn, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed May, 13, 1895.)

    Damages — Elevated bailway.
    In a proceeding "by an elevated railway to condemn the easements appurtenant to abutting premises, benefit to one piece oí property cannot be set off against damage to another piece, where they are separate and independent, though incorporated in a single description in the petition.
    Appeal from an order, confirming the report of the commissioners awarding to the defendant compensation for the taking of his easements, and directing the payment by petitioner of an extra allowance and costs.
    Hoadley, Lauterbach & Johnson, for app’lt; Stephen M. Hoye, for resp’t.
   Cullen, J.

This is an appeal from an order confirming the-award of commissioners of appraisal for damages caused by the construction and operation of an elevated railroad. But a single point is raised on this appeal. The property of the respondent, consisted of three separate and distinct, but adjoining, lots, with, stores and dwelling houses thereon, fronting on Myrtle avenue,. Brooklyn. The commissioners found that the value of two of these stores had been enhanced by the construction of the road,. but that the value of the third had been depreciated, and awarded therefor $500. The petititioner, in its petition, described the three pieces as a single parcel, with a single description. The appellant insists that the property should have been treated as a whole, and that the depreciation of the one piece should have been set off against the advantage to the others. We think not. The fact that in the petition the three lots were incorporated in a single description did not make these lots a single entity or unit, if the fact were otherwise. Whether they constituted a single plot, or not, depended on the improvements erected upon them, and the nature and character of their use, and also it might depend in some cases on the ordinary use to which land in the vicinity was put. Here the evidence shows that there was three independent structures on the property, each lot, used and held by itself. Each was therefore entitled to be considered as a separate plot. The case of Railway Co. v. Le Fevre, 27 Hun, 537, does not support the appellant’s claim. That was the case of a dwelling with a tract of ten acres of land surrounding it, the tract divided by a highway. The court held that the case differed from that of separate city lots used independently of each other. In the case of Newman v. Railway Co., 118 N. Y. 618 ; 30 St. Rep. 36, it was held that, in estimating the damage done to an abutting house, the jury should take into consideration any benefit to the house arising from the construction of the road. The case did not involve the right to set off benefit to one piece of property against damage to another piece. An examination of the opinion of Judge Brown shows that the decision did not proceed on any principle of set-off, but on the ground that the injury to adjacent property, not physically taken, could not be the net difference between benefit and injury; and this was so held in the case of Bohn v. Railway Co., 129 N. Y. 579 ; 42 St. Rep. 247, where the opinion of Judge Brown is reviewed and approved. The case of Rich v. Railway Co., 46 St. Rep. 673, so far as relates to the general term decision, is based on the ground that the plaintiff voluntarily, by his complaint, treated his lots as one, and an integral piece of property, and alleged but a single cause of acton therefor. Here the consolidation of the lots was made by the petitioner, not by the owner. Nor do we see any method by which the petitioner could be relieved therefrom, except by the course taken in this case, i. e. by proof on the hearing that there were three separate parcels. It is not necessary to discuss the correctness of the decision in the Rich Case, as it is plainly to be distinguished from that now before us. The order and award appealed from should be affirmed, with costs and disbursements.