author: Barrett, J.

text:
    Frank Work et al., Pl’ffs, v. Miles Beach, Def't.

      (Supreme Court, Special Term, New York County,

      Filed December 3, 1890.)

    1. Contract—Promise to pat when able.
    In an action to enforce a promise to pay a certain sum when able, made in liquidation of a disputed claim, plaintiff must prove that defendant had the ability to pay at the commencement of the action.
    2. Same—Proofs insufficient to sustain action upon.
    The mere fact that defendant received a large judicial salary is not sufficient to prove such ability, when it also appears that in the negotiations leading to such promise defendant fully explained his financial situation and that so long as certain obligations existed he would be unable to pay plaintiffs’ claim out of such salary, and such salary has been actually exhausted in meeting such obligations.
    Action upon a promise made by defendant to pay to plaintiffs a certain claim when able to do so.

      Henry S. Bennett, for pl’ffs; A. C. Brown, for def’t.
   Barrett, J.

We must approach the consideration of this case from the standpoint of the rule laid down by the general- term in disposing of the demurrer. Work v. Beach, 53 Hun, 7; 24 N. Y. State Rep., 256. It was there held, upon full consideration, that the promise to pay “ when able to do so,” upon which this action is founded, was conditional, and that to entitle the plaintiffs to recover thereon they must plead and prove the fact of such ability. The rule thus laid down is supported by many authorities both in England and in this country. Cole v. Saxby, 3 Esp. N. P., 159; Davies v. Smith, 4 id., 36; Penn v. Bennet, 4 Camp., 205; 2 H. Blackstone, 116; Scouton v. Eislord, 7 Johns., 36; Bush v. Barnard, 8 id., 407; Wait v. Morris, 6 Wend., 396; Cartledge v. West, 2 Denio, 378; Everson v. Carpenter, 17 Wend., 419; Wakeman v. Sherman, 9 N. Y., 85; see, also, Thompson v. Lay, 4 Pick., 48; Proctor v. Sears, 4 Allen, 95; Chandler v. Glover, 32 Penn. St., 509. The cogent reasoning of the presiding justice is almost identical with that of Judge Gardner, speaking for the court of errors, in Cartledge v. West, supra. It was urged upon the argument there that the stating of the account was a new consideration from which the law would imply a promise. “ Should this be admitted,” said Judge Gardner, “ it by no means follows that a promise will be implied different in its character from that actually made in express terms. If the accounting was a good consideration it will support the promise which the party really made, and not one of a different character.

“Suppose the defendant had given a promissory note, payable upon time, it will scarcely be insisted that the plaintiffs would be at liberty to abandon the note and sue upon an implied promise. The defendants said they would pay it as soon as they had funds as assignees to do so, and this is all they said about it. If we reject this promise we lay aside all the evidence in the case of an account stated. The promise was obviously conditional. An engagement to pay when the assignees as such were in funds is very different from a promise to pay forthwith or generally without regard to particular funds; but the learned circuit judge treated them as identical. There was no evidence that the defendants received any trust funds after this promise was made; but if there had been it should have been submitted to the jury.” We find the same reasoning of the court of appeals in- Wakeman v. Sherman, 9 N. Y., 85. This case is important too as showing the necessity for strict fulfillment of the precise condition. There the promise was to pay a debt which was barred by the statute of limitation and an insolvent’s discharge. The promise was conditional, namely, that the defendant “ felt in honor bound to pay the debt and would pay it, and at the end of one year if successful in business he would commence paying it.” It was held that this was a special promise to commence payment “ on the condition of another year’s successful business.” The defendant was able to pay when he made this promise, “as he had the previous year made $40,000 according to his own admission; ” and yet the court ruled that the plaintiff should have been nonsuited because no evidence had been given to show the result of the year’s business succeeding the promise. Mason, J., observed that “ the defendant might receive a fortune by gift or inheritance and not be liable upon such a promise. * * * The plaintiff utterly failed to show the fulfillment of the condition upon which the promise was made and the law is well settled that he was not entitled to recover without it,” citing several of the cases supra.

The plaintiffs, however, contend, that the case made by the present pleadings and proofs "differs from that presented by the demurrer to the original complaint, and that it now appears that, the promise to pay when able was not interwoven with the admission and statement of the account. There is nothing in the amended complaint, or in the testimony, to warrant this view of" the case. It proceeds mainly upon the unproved assumption that, the defendant had no defense to the action which was pending against him when the negotiations for settlement, which resulted, in the liquidation of the accounts and this promise to pay when able, were had. Upon this assumption the plaintiffs claim that the promise was made simply because the debt was just and was then due. They further claim that the promise to pay an honest- and admitted debt when the debtor can, is nothing more or less than a promise to pay on demand, or, at the outside, within a. reasonable time. The fallacy of these positions lies not only in the unproved assumption, but in the complete ignoring of the valuable consideration which, upon the settlement, the plaintiffs received from the defendant for their acceptance of this very conditional promise. Indeed, but for the acceptance of this conditional promise the settlement would have been entirely unilateral.' The-defendant gave up everything; his defense to the existing suit,, his profits upon his individual account, and his right to question the items of the joint account. What was he to receive in return ? Upon the plaintiffs’ theory, absolutely nothing: They got rid of his defense, they took his profits upon the individual account, they sold all his securities, the}'- effected a balance in their own way, which, upon receipt -of a final account, the defendant accepted blindly; and now they claim that, the defendant’s promise to pay that balance, “ when able to do so,” amounted to nothing, and- was really an unconditional acknowledgment of an honest debt and a promise to pay it on demand. This view of the transaction is wholly inadmissible. It is supported neither by the pleadings nor the proofs. The complaint contains á distinct averment that in the action upon the joint account the defendant “ duly appeared and interposed a defense contesting his liability on said account” In the interview which resulted in the settlement there was no statement or admission which conflicted with this denial of liability. There was, it is true, a recognition of some obligation with regard to this joint account,, general statements to the effect that the defendant desired in no event to shirk any responsibility, and that he would meet his obligations when able to do so to the extent, of his power. But there was no admission as to the extent or character of these obligations; nothing, in fact, which, in case the settlement had fallen through, would have prevented the defendant from contesting every item in the joint account. On the contrary, Mr. Sturgis himself testifies that the defendant, at this interview, after speaking of the hardship of paying another person’s proportion of the loss, declared that “he could fight” the plaintiffs in the action which they had brought against him on the joint account. The contention that the conditional promise was not interwoven with the account stated, or with the admission of its apparent balance, is equally unsupported by the proofs. This also is evident from Mr. Sturgis’ testimony, which I quote:

“ I then made him the proposition as follows: I said: If you will give us a written instruction to close your two accounts, admitting the correctness of both accounts, so that the matter shall be reduced into a fixed debit sum, and if after that is done you will in writing admit the correctness of these accounts and state that you owe this sum of money, and that you will pay the same when you are able to do so, my firm will withdraw the existing suit, and we will give you every possible opportunity and time to pay this sum of money; we will not oppress you, we will do nothing in any way to annoy you. On the other hand, our pleasant relations of the past can be resumed and everything will be as harmonious as it is possible under the circumstances.”

And again:

“ After more desultory conversation very much on the same subject we parted friendly, and with the full understanding of exactly what should be done as outlined in the letter which you have asked me to identify.”

The letter referred to by Mr. Sturgis, written by the defendant, reads as follows:

“It is my wish that you should sell, when favorable opportunity offers, the following securities in my accounts: $7,000 N. Y. 0. & H. bonds 1st of 1903; 500 shares Southern & Atlantic Tel. stock; 100 Hanover Bank stock; 800 Cincinnati & San-dusky, etc.; 80 Columbus, S. & Cincinnati. When this is done please consolidate my two accounts into the one standing in my own name, and let me have a statement. of my indebtedness to your firm. I will then write a letter to you stating my obligation to pay this sum when I can do so, in accordance with our agreement on Saturday last.”

That this letter expressed the intention of both parties is evidenced by the fact that it was drafted by Mr. Sturgis himself and sent to the defendant to be copied and signed. The defendant did copy and sign it, adding only the last words, “ in accordance with our agreement on Saturday last.” The sale of the securities followed, and with the final account showing the balance claimed in this action the plaintiffs wrote to the defendant as follows :

Will you now, as formerly agreed, write to us a letter stating your liability for this debit balance, joining with it an assurance that when able you will discharge the debt ? We beg to add that we will be glad to listen to any proposition looking to a final adjustment of the account.”

' Not having received an immediate reply to this letter, the plaintiffs wrote to the defendant some ten days later the following letter:

“We are without any reply from you to our letter of recent date. Will you kindly write to us as previously agreed and state the facts of the terms on which our financial relations now stand.”

To this the defendant replied as follows:

“ I have received your final statement of account showing balance your due in accordance with our agreement. To further complete compliance I write to say that I will pay such balance when I shall be able to do so.”

Both from the testimony and the documents then it is apparent that the promise was to be and was conditional. That fact went to the root of the entire settlement. It was upon that consideration that the defendant permitted himself to Ire concluded bjr the accounts rendered, and it would be a fraud upon his rights-without opening these accounts and putting him back in his original position to treat the promise as absolute or even as a promise to pay within a reasonable time whether able to do so or not. The conclusion thus arrived at brings me to the consideration of the serious question in the case, and that is, have the plaintiffs, as matter of fact, established the defendant’s ability to pay ? What was here meant by ability to'pay ? So far as judicial construction may serve as a guide I have received but little assistance from the learned Counsel on either side. They have contented themselves in discussing this novel question with expressing their own' views upon the special facts of this case without looking into the books or searching for authority. My own research has resulted in the discovery of but few cases where the question was considered and they throw but little light upon the subject. Cole v. Saxby, ubi sup., is one of these. The promise there was to pay when able.

In the course of the trial, which was before Lord Kenyon, that learned judge said: “I remember a case before Lord Mansfield, in Staffordshire, in which he was of opinion that it was incumbent on the plaintiff to show that the defendant was of ability to pay at at the time of the action brought.” Thereupon counsel commenced to examine a witness with regard to the defendant’s circumstances, but Lord Kenyon said: “It was not necessary to inquire further than his ostensible appearance and his circumstances as they were open to the observation of the world; that if appearances were that he was of sufficient substance and ability, he should hold it sufficient to satisfy the promise.”

In Davies v. Smith, ubi sup., the promise was of like character. It appeared, from the direct testimony of a witness, that by the death of his grandfather the defendant had become possessed of £8,000 under his will. Lord Kenyon interposed by saying: “That is not sufficient. The plaintiff should show that the defendant was of sufficient ability to pay when he was sued. I remember a case in which Sergeant Nares was of counsel, which turned upon this point. He contended that every man was liable to pay his debts for solvat per corpus qui non potest crwmena ; but that distinction is too fine.” On .cross-examination the witness said that whatever benefit the defendant might have derived under the will, he was then in debt infinitely beyond it; and was in fact, in consequence of his difficulties, forced to live out of the kingdom. Hpon this, Lord Kenyon nonsuited the plaintiff.

Everson v. Carpenter, ubi sup., was a case of a promise to pay “ as soon as he could.” It was held to be conditional and unavailing without proof of ability. Co wen, J., observed : “The plaintiff’s counsel thinks the jury were warranted to draw the inference of ability from the fact of the defendant having a sign of business over his door when the notes were first demanded. * * * Such circumstance is too slight to raise a question for the jury.”

The only judicial authority I have been able to find, supporting the plaintiff’s curious contention that the sheriff is the only judge who can solve the question of the defendant’s ability to pay, is an old Kentucky case, Kincaid v. Higgins, 1 Bibb, 396 (1809). Mr. Justice Boyle is there reported to have said that, “a promise to pay as soon as the debtor possibly can is, in the contemplation of law, a promise to pay presently. The law supposes every man able to pay his debts, and if the ability to pay was a question to be tried, the only practical mode of trial is per execution.”

The learned judge added, with grim humor, “ and of this it is not yet too late for the defendant in the court below to have full benefit.” This is the kind of doctrine that laymen sometimes term practical common sense. It is open to the legal cavil that it alters a man’s contract because of the difficulty of proving the essential fact upon which his contract liability rests. There are also cases where a promise to pay when convenient ” was considered, such as Works v. Hershey, 35 Iowa, 340, and Lewis v. Tipton, 10 Ohio St, 88. In Works v. Hershey, the instrument read “on demand after date, I promise to pay when convenient.” The latter words, it was held, could not be construed to nullify the promise to pay on demand. “If any force be given them,” said the court, “ it will be that the maker bound himself to pay within a reasonable time after the date of the note.” The instrument which was considered in Lewis v. Tipton, read as follows:

“ For value received I promise to pay to the order of James A. Tipton, $95, when I can make it convenient, with ten per cent, interest until paid.” .Upon this the court observed:
“Itis conceded that the intention of the parties to a contract cannot prevail if directly contrary to the plain sense of the words employed, but when the intention is sufficiently apparent, effect should be given to that intent, though some violence be done to the words. The payee certainly parted with its value to secure the promise, and the maker not only admits this, but promises to pay interest thereon while the payment is forborne. If the convenience of the maker is to be consulted, he might never find it altogether convenient to pay, and the construction leads to results certainly not contemplated by the parties when the note was written.”

Zimmer v. Brooklyn Sub-Railway Company, 23 Abb. N. C., 382, 25 N. Y. State Rep., 974, was the case of a corporate promise-to pay conditioned upon the corporation being in funds. Van Brunt, P. J., said that the plaintiff “took the risk of the corporation having the money, and if, for any reason short of an actual intent to defraud, it has not got the money, the plaintiff cannot recover by the very terms of his contract.” It may fairly be deduced from these cases, that the plaintiffs were bound to prove the defendant’s ability to pay at the commencement of the action, and that such ability could be shown by circumstances, as well as by direct evidence.

Beyond this, there is no fixed rule. Each case must depend upon the terms of the contract read in the light of the surrounding circumstances. Substantial proof of ability, within the intent and meaning of the parties, must be given, and, although that proof may in the nature of things be difficult, it is none the less requisite. By taking a conditional obligation, the condition being itself founded upon a valuable consideration, the obligee accepts the burden imposed upon him of establishing fulfillment of the condition before he can recover. In the present case, the only evidence which the plaintiffs have given tending to show ability is the defendant’s admission that since the promise was made he has been in receipt of a judicial salary of $1,250 per month. The defendant testified that this salary was expended, month by month, as received, and that he had not a penny of it at the time of the commencement of this suit. It was so expended to meet burdens and obligations which he specified in the interview with Mr. Sturgis which led to the settlement. This - included his personal expenses, for which a reasonable sum was utilized. And here I may say that it was the defendant’s duty to the people, whose servant he is, to maintain himself decently and in a manner suitable to his judicial station. Such expenditures necessarily consumed the entire amount received, and there was certainly at no one time actual ability to pay this debt The plaintiffs, however, contend that the salary received by the defendant should be aggregated, and the totality treated as a lump sum in his hands. They reason somewhat in this wise: In the three years between the making of the promise and the commencement of the suit, the defendant received in money $45,000. That was more than enough to pay their -claim, and, consequently, ability is shown. The answer to this position is that nothing of the kind was contemplated when the settlement was made. The plaintiffs at that time knew the defendant’s financial condition. He made a full disclosure to Mr. Sturgis of his precise situation, informed that gentleman of all his obligations and burdens, and pointed out the great difficulty which he experienced, notwithstanding the curtailment of personal and household expenses, in making both ends meet. By the latter expression he explained to Mr. Sturgis that he meant in paying these obligations and assuming these burdens from his judicial salary.

The defendant’s inability to pay any part of the plaintiffs’ claim out of his salary, so long as these specified burdens and obligations lasted, was thus fully recognized by both parties, and their understanding of the adjustment plainly excluded that salary as an element of ability. The contract must be read in the light of the surrounding circumstances, and these circumstances plainly indicate the real intention and understanding of the parties. That understanding undoubtedly was that the defendant should be required to pay only when his circumstances were changed for the better, either by an accession of fortune or a decrease of obligation. If, notwithstanding the disclosure of the specified burdens and obligations, and the fact, also made known to Mr. Sturgis, that they consumed every penny of the defendant’s judicial salary, resort to this salary was contemplated to the exclusion of some part of such burdens and obligations, it would have been easy to say so and to express the understanding upon that head in the contract. Indeed, Mr. Sturgis would give us to understand that this was contemplated, a statement which the defendant explicitly denies. This is the only important conflict of testimony in the case. The parties are in equipoise on that head, and I see no reason to prefer one to the other, when it comes to the point of personal credibility. The probabilities, however, all point in favor of the denial rather than the affirmation, for it certainly is most unlikely that a shrewd man of business, seeking an obligation to pay out of a particular fund, should have omitted to specify the fund in the written contract which embodied the obligation. If it had been intended to appropriate a part of the defendant’s salary it would certainly have been natural to so provide in the contract. May, more; we might even expect to see the amount which the defendant was annually to set apart specified with reasonable precision. It appears from the defendant’s uncontradicted testimony that he was not able to pay the liquidated balance of the plaintiffs’ account, or any part of it, at the time when this suit was brought. This, indeed, is not disputed. The plaintiffs' claim is that the defendant should have been able to pay at that time, not that he really was able. But this was not his contract. The claim that he should have been able to pay is fully met by the uncontradicted testimony that his circumstances had not changed in the least between the date of the promise and the time of the commencement of the action.

His income had not increased; his enumerated burdens and obligations had not decreased. It was, therefore, as difficult at that time to make both ends meet as it was when the defendant explained his situation to the plaintiffs, and when the latter, with full knowledge of that situation, accepted the promise to pay “ when able ” in consideration of the valuable concessions made to them.

The learned counsel for the plaintiffs complains that,, while the defendant was permitted to show the unchanged continuance of these burdens and obligations, he was not permitted to inquire whether the objects of the defendant’s duty were still living. But the learned counsel’s question was immaterial, both on principle and on the authorities to which I have referred, for it related to> the time of trial. It would have been proper and would have been admitted if limited to the time of the commencement of the action.

I am constrained to find, therefore, as matter of fact, that the plaintiffs have failed to establish the defendant’s ability to pay either within the letter or the spirit of the contract. The case was submitted to me upon this head as to a jury.' The learned counsel for the plaintiffs in his brief refers to the court as a court of equity and seems to treat this action as in the nature of a bill to reach surplus income. This, of course, is a wholly erroneous idea. The action is strictly legal. If the plaintiffs are entitled to recover at all, it is solely upon the promise. Upon proof of ability, they would be ■entitled to recover the entire amount of their claim. Upon failure to make that proof, they necessarily fail in toto. It follows that the judgment must be for the defendant, dismissing the complaint, with costs.


source: Caselaw Access Project

author: Bischoff, J.

license: Public Domain

text:
    Lewis Crager, Resp’t, v. Robert Reis, Impl’d, App’lt.

      (New York Common Pleas, General Term,

      Filed January 5, 1891.)

    Partnership—Assignment op claim against—Release op one partner.
    This action was brought upon a claim for goods sold by S. & Co. to defendants as partners, which had been assigned to plaintiff in the name of the firm by the junior partner. The indebtedness of the firm was not denied, but defendant Reis introduced in evidence and proved the execution by 8. of a release discharging him from said claim, which was dated prior to the assignment to plaintiff. There was no proof as to the date of delivery of the release. Held, that in the absence of such proof the presumption that it was delivered at its datemust control, and that, therefore, plaintiff acquired no right of action against Reis under his assignment; that the fact that the release was acknowleged subsequent to such assignment does not affect the question in the absence of proof that S. had possession thereof subsequent to its date.
    Appeal from judgment of the seventh judicial district court, in an action to recover on an assigned claim for goods sold and delivered.

      Hayes & Greenbaum, for resp’t; Sumpter & Platzek, for app’lt.
   Bischoff, J.

This was an action brought by the against Eobert Eeis and M. A. Tynberg to recover the balance due for goods sold and delivered by the firm of M. Schlessinger & ■Co. to the defendants, comprising the firm of M. A. Tynberg & Co., the plaintiff claiming under an alleged assignment from M. Schlessinger & Co. The complaint alleged the copartnership of the defendants and the copartnership of Max Schlessinger and Emile Lux; that Schlessinger & Co. sold and delivered to Tynberg & Co. merchandise of two hundred and twenty-one dollars and nine cents ($221.09), of which one hundred and thirty-two dollars and sixty-four cents ($132.64) had been paid, leaving a balance of eighty-eight dollars and forty-five cents ($88.45) with-interest

The complaint further alleged that prior to the commencement of this action Schlessinger & Co. had assigned the claim for the balance due to the plaintiff. The defendant Eeis, by his answer, did not controvert the allegations of copartnership, and he was, therefore, precluded upon the trial from offering any testimony in contradiction of the allegations in the complaint that the defendants were copartners under the firm name of M. A. Tynberg & Co., and that Max Schlessinger and Emile Lux were copartners under the firm name of M. Schlessinger & Co. The defendant Eeis denied all other allegations of the complaint, and as a particular defense asserted that prior to the commencement of this action Schlessinger & Co., for valuable consideration, had forever released and discharged him from all liability upon the claim in suit. Upon the trial one Sigismund Tynberg, a son of the defendant Tynberg, was called as a witness for the plaintiff, and testified that he was the manager of the business of ,M. A. Tynberg & Go.; that he kept their books ; that they had purchased merchandise from Schlessinger & Go. to the amount of two hundred and twenty-one dollars and nine cents ($221.09), of which only the sum of one hundred and thirty-two dollars and sixty-four cents ($132.64) had been paid, and that there was due from said Tynberg & Go. to Schlessinger & Co., for the balance of the claim, the sum of eighty-eight dollars and forty-five cents ($88.45), with, the accrued interest thereon. No attempt was made on behalf of defendants to controvert this testimony, and the claim in suit was therefore sufficiently established. The plaintiff also produced- in evidence an alleged assignment of the claim, dated April 13, 1889, signed M. Schlessinger & Co., which he attempted to prove by the testimony of Sigismund Tynberg, who testified that he saw the assignment executed by Emile Lux and delivered to the plaintiff on the day of its date.

■ The defendant Reis, on the other hand, offered in evidence a paper, under the hand and seal of Schlessinger & Co., dated September 12, 1888, executed in the name of Schlessinger & Co., by Max Schlessinger, and purporting to release and discharge the defendant Reis from all claim which said Schlessinger & Co. had against him individually or as a member of the firm of M. A. Tynberg & Co. The execution of this release was proved by one Silberstein, the subscribing witness, who testified that he saw it executed by Max Schlessinger on the day of its date. He also testified that he saw it delivered, and whether or not delivery took place on the day it bears date, or upon a subsequent day, does not appear. We have, therefore, to consider in this case only the effect of the alleged assignment under which the plaintiff claims and the instrument under which the defendant claims to be released.

It is elementary that, in the absence of proof to the contrary, a deed in the possession of the grantee must be presumed to have been delivered on the day of its date. Best on Evidence, § 402 ; Abbott’s Trial Evidence, 508.

Applying this presumption to the facts of the case before us, and there being no proof of the actual time of its delivery, we are constrained to hold that the instrument discharging the defendant Reis from all liability to Schlessinger & Co. growing out of their claim against Tynberg & Co. was delivered on September 12,1888, and, therefore, prior to the alleged assignment to the plaintiff, which is dated April 13, 1889.

And thus the plaintiff under the alleged assignment to him. could not thereby have acquired any cause of action growing out of the indebtedness of Tynberg & Co. to Schlessinger as against the defendant Reis. If the plaintiff meant to contend that the release of Reis was actually delivered upon a day subsequent to its date and subsequent to the assignment to him, it was incumbent upon him to introduce evidence to that effect and in this he has utterly failed. The fact that the acknowledgment to the release was taken on a day subsequent to its date and subsequent to the alleged assignment to the plaintiff, to wit, May 29, 1889, is not sufficient to destroy the presumption of delivery on the day of thé date of the instrument, since it does not- appear from such acknowledgment that on the day of the date therfeof Schlessinger was in possession of the instrument; and without some evidence that Schlessinger continued to be in possession of the instrument subsequent to the day of its date we cannot find that it was delivered npon a day other than such da}'.

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

Bookstayer, J., concurs.


author: Pryor, J.

text:
    John A. C. Gray, Resp’t, v. The Manhattan Elevated Railway Company et al., App’lts.

      (New York Common Pleas, General Term,

      Filed January 5, 1891.)

    1. Railroads—Elevated—Damages—Benefits to property.
    In fixing the amount to be paid for damages to fee value in order to terminate an injunction, the court expressly refused requests to set off benefits to the property arising from the construction <?f the road. It appeared that the property had since risen in value from $24,000 to $84,000, while property in adjacent parallel streets showed no such increase. Held, that the court erred in rejecting such requests; that an increase in value which plaintiffs property derives from the railroad, and which is not participated by the public generally, is a special and peculiar benefit with which the railroad is to be credited, no matter what the number of properties upon which such special and peculiar benefit is bestowed.
    3. Same.
    So far as the error merely affected the amount which might be paid to avoid the injunction, it would be ineffectual to reverse the judgment, but, under the circumstances, it goes to the foundation of the action; for if the gain to the property had been set off against the loss, it could not be said that the court would have granted an injunction.
    Appeal from judgment in favor of plaintiff.

      Julien T. Davies and Samuel Blythe Rogers, for app’lts; George Putnam Smith, for resp’t.
   Pryor, J.

The trial occurred prior to the decision in Newman v. The R. R. Co., 118 N. Y., 618; 30 N. Y. State Rep., 36, and at a time when, by the current adjudications of the courts, benefits to property from the presence of the railroad were not allowed to affect the amount of recovery for injuries by the railroad. On the trial defendants endeavored, but endeavored in vain, to avail themselves of those benefits in mitigation of those injuries. Thus, they proposed the following conclusions of law, which, the court refused, and to which refusal they duly excepted : “ In estimating the value of plaintiff’s easements, if any, the benefits resulting to said premises, and peculiar thereto, from the maintenance and operation of said railway, are entitled to be set off against the inconveniences thereto, resulting from the said maintenance and operation.” Again, defendants requested this finding of fact, namely: “ The value of the plaintiff’s easements, taken, appropriated or interfered with, and resulting from the perpetual maintenance and operation of the defendants’ railway, over and above the said benefits resulting therefrom to the said premises, and peculiar thereto, is the sum of dollars.” This request was likewise refused, and to the refusal exception was duly taken.

Eay more, in its findings of fact (seventeenth) the court implicitly excluded any and all allowance for benefits from its estimate of damages to the property; and to this ruling again defendants took the appropriate exception.

Thus, by every legal expedient, defendants presented the proposition that they were entitled to credit for any special and peculiar benefit their railway conferred on the property ; and thus the court by its rulings refused them any allowance for such benefit. The contention of respondent that notwithstanding this distinct rejection by the court of defendants’ claim for benefits the court is still to be assumed to have allowed them in the computation of its award is plainly inadmissible; for first, it conflicts with the presumption, prevalent in all forensic proceedings, that error is detrimental unless the contrary be clearly and conclusively apparent; and secondly, if error in a ruling by the court be cancelled by a presumption that such error was of no effect in its decision, then obviously the judgment of the court is invulnerable and the process of appeal an idle and ineffectual formality.

If, however, we concede the presumption for which respondent contends it would prevail only in the absence of proof that the ■error of the court was operative in its judgment; but upon the record before us the inference is irresistible that in the award of damages to plaintiff all consideration of benefit to his property was excluded.

By plaintiff’s own witnesses it appears that the property in question has arisen from $24,000, its value before the railroad was built, to $84,000, its value after the construction and operation of the road. But it is argued that this enormous enhancement of value is not the effect of those special and peculiar benefits from the road with which defendants .may be credited, but is due to that general appreciation of property which accrues to the public generally, and is not, therefore, chargeable against plaintiff in the computation of his damages. Newman v. R. R. Co., 118 N. Y., 628; 30 N. Y. State Rep., 36.

What are the special and peculiar ” benefits to property from the presence of the railroad, which the court of appeals says must be deducted in the award of damages to plaintiff? Are they such benefits as his property, and his property alone, enjoys from the railroad ? If so, then the several owners of two contiguous lots increased in value by the road would neither be chargeable with benefits, although if the lot of one only were advantaged, the award for his property might be reduced by the benefit possibly to a nominal sum, a palpable reductio ad absurdwm. But, if two lots may be chargeable with benefits, why not ten, or a hundred, or all the lots along the line of the railroad? Plainly, the test is not the number of properties benefited; but the criterion is the relation of the properties to the railroad, and the specific-effect of the railroad upon their value. By the express terms of the court of appeals decision, the distinction is between the increase of value from the growth of public improvements which “accrues to the public benefit generally" and “the special and peculiar advantages which the property receives from the construction and operation of the road, and the location of the stations.” Hence, an increase of value which plaintiff’s property enjoys from the railroad in common with the public “ generally ” is a benefit with which defendants are not to be credited as against the plaintiff; but an increase of value which plaintiff’s property derives from the railroad and which is not participated by the public generally, is a special and peculiar benefit with which the railroad is to be credited, no matter what the number of properties upon which such special and peculiar benefit is bestowed. If the benefit be directly derived from the railroad, either by the proximity of its stations, or the facility of access it affords, and be not shared by the general public, then it is a special and peculiar benefit

Now, it abundantly appears in the case that the enhancement in value of plaintiff’s property is attributable directly to the proximity of defendants’ stations, and to the approach to it by which defendants’ railroad rescued it from its former secluded and inaccessible locality. And that this benefit is “special and peculiar ” is demonstrated by the unchallenged proof, that property in the parallel and adjacent avenues along which the railroad does not run exhibits nothing of that prodigious rise in value which is so conspicuous in plaintiff’s property. Indeed, that plaintiff’s property is specially and peculiarly benefited by defendants’ railroad is, in effect, conceded by the trial court, which found “ that said premises would not be worth as much as they are, had the said railway and station not been built.”

But, that this special and peculiar benefit was not allowed to defendants in the assessment of plaintiff’s damages is evident in the fact that, whereas plaintiff’s property has increased $60,000 in value since the railroad, the' court awarded, him $8,000 damages from the railroad; manifestly an impossible result, had any deduction been made on account of benefits from the railroad. •

The inquiry then is, did the court err in its rejection of the proposition of law submitted by the defendants ? In other words, was not the amount of award to plaintiff for his property taken by defendants subject to reduction by an allowance for benefits specially and peculiarly accruing to his property from the presence of defendants’ railway? Since the decision of the Newman case the question is no longer open, at all events in this court In that case, 118 N. Y, 618; 30 N. Y. State Eep., 36, the judge charged the jury that they “had no'right to take into consideration any benefit to the premises,” and this the court of appeals unanimously held to be a fatal error. The court says (p. 625) that “ in making an award to a party situated as the plaintiff was with reference to the defendants’ railroad,” (the relation of this plaintiff to defendants’ railroad is identical) “ there would be no compensation for property taken beyond a nominal sum, and that his right to recover would rest chiefly upon proof of consequential ■damages. An estimate of such damages involves an inquiry into the effect of the railroad upon the whole property and a consideration of all its advantages and disadvantages.”

Again, the court says (p. 624) that the “ commissioners must consider the effect of the road upon the whole of the remainder of plaintiff’s property, its advantages, benefits and inj uries, and if the result is beneficial, there is no damage and nothing can be awarded.” Still further, criticising the charge below, the court say (pp. 627, 628): “ If the rule which the court held in this case is to govern awards made against railroad companies whose structures are erected, in the public streets under public authority when no land is taken, and the compensation is confined to injuries sustained by abutting property, the companies will be compelled, in many instances, to pay where no injury has been done, and parties will recover who have sustained no loss. Such a rule has not yet received judicial sanction.”

Plainly and incontestably, the ruling under review is irreconcilable with the court of appeals; and equally certain is it that the ruling would not have been made by the very accurate and careful trial judge had the decision of the Newman case been promulgated when he judgment in the case before us.

If the refusal of the court to apply the law as submitted by appellant merely affected the amount which appellant might pay in avoidance of the injunction, the error would be ineffectual to reverse the judgment; but it goes to the very foundation of the action, and involves the question whether plaintiff be entitled to injunctive relief. For had the gain to plaintiff’s property from the railroad been set off against the loss, we cannot say but that the court would have found that the benefit preponderated over the injury, and so-that no case was shown for an injunction.

Waiving the consideration of appellants’ other points, for the error discussed the judgment must be reversed. Schwinger v. Raymond, 83 N. Y, 193; Code Civ. Pro., §§ 1023, 992.

Judgment reversed, new trial ordered, costs to abide event Bookstaver and Bischoff, JJ., concur.


text:
    S. Charles Welsh, Ex’r, Resp’t, v. The New York Elevated R. R. Co. et al., App’lts.

      (New York Common Pleas, General Term,

      Filed January 5, 1891.)

    1. Railroads—Elevated—Damages—Benefits.
    In estimating damages to rental value of property by the erection and miintenance of an elevated railroad in front of said premises, it is error to refuse to allow benefits to the property derived from the railroad in mitigation of the damages.
    2. Same—Injunction.
    Where the plaintiff is the owner simply of a leasehold interest in the premises, an injunction should only be granted to continue during the subsistence of his interest.
    Appeal from judgment of special term in favor of plaintiff.

      Julien T. Davies, Samuel Blythe Rogers and J. C. Thompson, for app’lts; G. Willett Van Nest, for resp’t.
   Pryor, J.

In this action, for an injunction against defendants, railway and for damages, plaintiff has judgment for an injunction, and for $15,650 damages for past injury. Because of error apparent in the record, the judgment must be reversed.

I. Seeking to avail themselves of the principle afterwards enunciated in Newman's case, 118 N. Y, 618; 30 N. Y. State Rep., 36, defendants requested the trial court to find conclusions of law, as follows: “ In estimating the combined injury done to the rental value of said premises by said railroad in Greenwich street and. railroad station in Barclay street, the benefits conferred by the said station upon the same should be considered in mitigation of damages.” And, again: “ The increased rental value of said premises due to the benefits conferred by said station upon said premises should be considered as diminishing pro tanto the damage to the rental value of the same.” Each of these requests was refused, and to such refusal defendants duly excepted.

Then, the court was requested to find the fact that, “ the existence of said station on the said railroad has rendered said premises more accessible to other parts of the city of New York than they otherwise would be. This has added to the rental and fee value of said premises.” This request also was refused, and to the refusal defendants duly excepted.

Furthermore, defendant offered evidence of special and peculiar benefits to plaintiff’s property from the maintenance of defendants railway and, station, but the evidence was excluded, and defendants excepted. The rejection of this evidence is adduced, not as error in itself (it probably was), but as manifesting that in the judgment of the court proof of benefit was incompetent to mitigate injury. But, that the court excluded all consideration of benefits in its award for damages to plaintiff’s property is clear beyond controversy, in its suggestion to the witness to leave benefits out in his estimate of injury to rental value. Indeed, upon all the evidence, it is impossible to resist the conclusion, were it necessary to invalidate the judgment, that the learned trial judge yielded to the then prevalent doctrine of the court, and eliminated benefits, of which there was ample evidence, from his estimate of injury to plaintiff’s property. ■

The opinion in Gray's case, herewith decided, ante, 32, renders further discussion of the point superfluous.

II. In any litigation a party’s recovery must be on the basis of his interest, and can only be commensurate with his interest. Here, plaintiff’s interest in the premises affected is a leasehold estate terminable 1st of July, 1892, but with, a contingent right of a renewal for twenty-one years. Yet the court allowed plaintiff a perpetual injunction, forever restraining the maintenance and operation of defendants’ railroad. The restraint should have been only during the subsistence of plaintiff’s interest. Upon an extension of his term another injunction might issue. Welsh v. R. R. Co., 8 N. Y. Sup., 492; 29 N. Y. State Rep., 511.

Although this error might be obviated by a modification of the judgment, still for the other it must be reversed.

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

Daly, Ch. J., and Bischoff, J., concur.


author: Per Curiam.

text:
    Frederick D. Blake, Resp’t, v. Carl Voight et al., App’lts.1

      (New York Common Pleas, General Term,

      Filed January 5, 1891.)

    Appeal—Leave to go to court op appeals.
    The questions involved in this action deemed of sufficient importance to be determined by the court of appeals, as there is no decision directly in point.
    Motion for leave to appeal to the court of appeals.

      Charles H. Hughes, for app’lts; C. Bainbridge Smith, for resp’t.
   Per Curiam.

The additional term of this court are pointed to hear appeals from the district courts exclusively, and do not ordinarily entertain motions of this kind; but inasmuch as both parties have consented and are desirous that this general term should dispose of the motion in order that it may appear upon the next calendar of the court of appeals if it is granted, we have concluded to entertain it.

We deem the question litigated in this action and determined by the general term to be of sufficient importance to entitle the same to be finally settled by the court of appeals, inasmuch as there has been no decision directly upon the questions involved, provided that within five days from the entry of an order on this decision the appellant perfect his appeal to said court.

Bookstaver and Bischoff, JJ., concur.


text:
    In the Matter of the final accounting of Francis O. Boyd, assignee of Charles S. Bryce.

      (New York Common Pleas, General Term,

      Filed January 5, 1891.)

    Assignment fob creditors—Preferences.
    Notwithstanding the provisions of the act of 1887, in relation to preferences in assignments, the debtor may still direct the application of one-third of the net proceeds towards the claim of one preferred creditor before they can be applied to payment of a second preferred creditor. The intention of the statute was only to restrict the quantity of the estate which could be so applied, and the provision that in case of insufficiency to pay the preferred claims in full they should be applied on said claims pro rata refers only to cases where the preferred creditors belong to the same class and are equally preferred in the order in which the one-third is directed to be applied.

      Appeal from an order confirming referee’s report made upon the accounting of an assignee and directing the application by the assignee of one-third of the net assets towards the payment of the claim of the first preferred creditor.

      Wm. D. Veeder, for Wm. D. Bryce, app’lt; Joseph H. V. Arnold, for Ross & Kearney, resp’t.
   Bischoff, J.

The sole question to be determined on this peal is as to the right of the' court under the provisions of the Laws of 1887, chap. 503, to direct the application of one-third of the net assets of the assigned estate towards the payment of the claim of the first preferred creditor where the assignment creates several classes of preferences and such one-third of the net assets is insufficient to pay the first preferred claim in full.

The language of the statute referred to is as follows: “ Section 30. In all general assignments of the estates of debtors for the benefit of creditors hereafter made, any preference created therein (other than for the wages or salaries of employes under chapter three hundred and twenty-eight of the Laws of eighteen hundred and eighty-four, and chapter two hundred and eighty-three of the Laws of eighteen hundred and eighty-six) shall not be valid except to the amount of one-third in value of the assigned estate left after deducting such wages or salaries, and the costs and expenses of executing such trust; and should said one-third of the assets of the assignor or assignors be insufficient to pay in full the preferred claims to which, under the provisions of this section, the samé are apjilicable, then said assets shall be applied to the payment of the same pro rata to the amount of each of said preferred claims.”

However much the practice of debtors in failing circumstances to give preference in payment to some creditors to the exclusion of pthers, by assignments for the benefit of creditors, may be condemned, the common law right to make such preferences has always been conceded to exist. Riggs v. Murray, 2 Johns. Ch., 565; Grover v. Wakeman, 11 Wend., 167; Boardman v. Halliday, 10 Paige, 223; Goodrich v. Downs, 6 Hill, 438; Webb v. Daggett, 2 Barb., 9; Barney v. Griffin, 2 N. Y., 365; Nicholson v. Leavitt, 6 id., 510.,

And any statutory interference with such right must, therefore, be strictly construed. Taylor v. The Mayor, etc., 82 N. Y., 10.

Thus in the consideration of the limitations upon the debtor’s right to apply his property towards the payment of preferred claims, contained in chap. 503, Laws of 1887, only that which may be fairly deemed to have been the intendment of the legislature by the strictest interpretation of the statute should be held applicable; and all rights not abrogated in express terms, or by implication, must, therefore, be regarded as still subsisting.

It is apparent from a careful and unbiassed reading of the statutory provision above referred to, that the only limitation intended was to .restrict the quantity of the debtor’s estate which he may desire to apply in payment of the claims of creditors preferred by him, and that the common law right of the debtor to create distinct classes of preferred creditors, and to provide that his assets shall be applied towards the payment of one class, in preference to an inferior class, is in no sense disturbed. That is to say, notwithstanding the statutory provisions above referred to, the debtor may still direct the application of one-third of the net assets towards the payment of the claim of one preferred creditor before such assets shall be applicable to the payment of the claim of a second or third preferred creditor.

The language, “ and preference * * * shall not be valid, except to the amount of one-third in value of the assigned es-. tate,” is equivalent to saying that one-third of the assigned estate may be applied towards the payment of any preferred claim. The subsequent provision that “ in the event that said one-third of the assets shall be insufficient to pay the preferred claims in full,- then said assets shall be applied to the payment of the preferred claims pro rata" has reference only to the case where such preferred claims belong to the same class and are equally preferred in the order in which the one-third of the net assets are directed to be applied, but does not contain any inhibition upon the debtor to direct the order or manner in which so much of his assets as may be properly applicable for that purpose shall be distributed among his preferred creditors.

The order appealed from should be affirmed, with costs.

Daly, Ch. J., and Pryor, J., concur.
      See 34 N. Y. State Rep., 295.


text:
    Francis C. Lawrence, Resp’t, v. The Metropolitan Elevated Railway Co. et al., App’lts.

      (New York Common Pleas, General Term,

      Filed January 5, 1891.)

    1. Railroads—Elevated—Evidence.
    The erroneous admission of evidence as to an offer for the property of plaintiff as evidence of its value in an action to restrain the maintenance of an elevated railroad and for damages, is not ground of reversal. Such error cannot infect any element of the judgment and is inoperative to impair its validity.

      2. Same.
    The basis of such an action is the right to injunctive relief, and the recovery of past damages is merely incidental, and not an issue in the action.
    3. Same.
    The condition attached to the injunction is granted as a favor, which the railroad is.not obliged to accept, and whether it accepts or rejects it, it cannot attack such condition.
    Appeal from judgment in favor of plaintiff.

      Julien T. Davies and Brainard Tolles, for app’lts; Henry A, Foster, for resp’t.
   Pryor, J.

Appeal from a judgment in equity awarding an injunction and damages for injury to plaintiff’s property.

The action is to restrain the maintenance and operation of defendants’ railway in the highway fronting plaintiff’s property, and as incidental relief for the loss already sustained by plaintiff from the depreciation in the rental value of that property occasioned by the presence and operation of defendants’ railroad.

The chief error alleged as ground for the reversal of the judgment is the admission of incompetent evidence ; namely, proof of an offer for the property as evidence of its value.

In our view, upon, the assumption of the incompetency of the evidence, its admission is inoperative tó affect the validity of the judgment.

The basis of the action is a right to injunctive relief, and the recovery of past damages is merely incidental, and is allowable only for the purposes of complete justice; upon the principle that when equity legitimately acquires jurisdiction, it will proceed to dispose of the entire controversy. Henderson v. The N. Y. C. R. R. Co., 78 N. Y., 423; Shepard v. The Manhattan R. R. Co., 117 id.; 442; 27 N. Y. State Rep., 705. “The court having gained jurisdiction for the purpose of restraining the defendant, it was proper to award damages for the injuries sustained before the commencement of the action.” Fox v. Fitzsimons, 29 Hun, 574, 578. It results that if no ground of equitable relief be established; here, a right to an injunction; plaintiff cannot have an award of damages, but the action must be dismissed. Bradley v. Aldrich, 40 N. Y, 504; Wheelock v. Lee, 74 id., 495; Arnold v. Angell, 62 id., 508; Beck v. Allison, 56 id., 366.

Still more obvious and indisputable is it that a right to recover compensation for the value of the fee is not a constituent of the cause of action exhibited by the complaint.

The judgment imposes no obligation to pay plaintiff the value of the fee. Indeed a judgment purporting to impose such obligation would be a legal solecism, for such a judgment involves the concession that damages afford a complete reparation to plaintiff; but equity is ousted of jurisdiction the moment it appears, that money is an adequate remedy for the wrong. Then, too, in legal effect the injunction stops the injury, but an award of damages for the fee proceeds upon the hypothesis that the injury is to continue in perpetuity.

Again, upon the supposition that the award of damages for the fee is intended as compensation for the talcing of plaintiff’s property by defendant railroad company, and such award can be for no other purpose, we are confronted by the fact that the constitution of the state, art. 1, § 7, has prescribed another tribunal for the ascertainment of the amount to be paid for property taken for public use; and so a court of equity has no jurisdiction of the subject. Hilton v. Bender, 69 N. Y., 76, 86; Menges v. City of Albany, 56 id., 374.

It follows, therefore, that when the court proceeded to inquire as to the value of plaintiff’s fee taken by defendant, it was not engaged in the determination of any issue in the action, the sole issue being as to the right to an -injunction, nor in administering any relief legally comprehended within the scope of the action as a suit in equity; such incidental relief being only an award of damages for past injuries." But, the true theory of the case is this: that having determined plaintiff’s right to an injunction restraining the maintenance of defendant’s railroad, the court, as a favor to defendant, proceeded to couple its injunction with a condition ; namely, that if defendant would pay plaintiff a certain sum, then the operation of the injunction should be arrested. There was no compulsion upon the court to proffer the defendant this alternative ; but it would have satisfied all the legal exigencies of the action by the issuance of an absolute injunction.

On the other hand, defendant is under no obligation to accept the alternative; but is perfectly free to reject the condition. Bartlett v. Stinton, L. R., 1 C. P., 483, 484; Henderson v. N. Y. C. R. R. Co., 78 N. Y., 423, 430; Carter v. N. Y El. R. R. Co., 28 N. Y. State Rep., 582; Eno v. Metropolitan R. R. Co., 56 Superior Ct., 313; N. Y. Nat. Ex. Bank v. Metropolitan, 53 id., 511; 108 N. Y., 660; 13 N. Y. State Rep., 903; 8 N. Y. Suppl., 492; 29 N. Y. State Rep., 511. Hence this dilemma, namely, should the defendant reject the invitation to pay plaintiff the value of his fee, then manifestly no injury ensues to defendant from any error in ascertaining the amount of that value; or, should the defendant accept the offer as a condition of escape from the injunction, then, by all authorities, he is precluded to challenge that condition. Carll v. Oakley, 97 N. Y., 633; Radway v. Graham, 4 Abb., 468 (Com. Pleas); Smith v. Rathbun, 75 N. Y., 122; Murphy v. Spaulding, 46 id., 559; Knapp v. Brown, 45 id., 210; Genet v. Davenport, 59 id., 648; Wallace v. Castle, 68 id., 375; Bennett v. Van Syckel, 18 id., 481; Marvin v. Marvin, 11 Abb., N. S., 97; Chapin v. Foster, 101 N. Y., 1; Dambmann v. Schulting, 6 Hun, 29; Claflin v. Frenkel, 29 id., 288; Platz v. City, 8 Abb. N. C, 392.

Whether defendant reject or accept the condition, i. e., payment of the fee value to arrest the injunction, he cannot attack the condition, for another reason; namely, that it was propounded by the court as a favor and in the exercise of its discretion. Smith v. Dodd, 4 E. D. Smith, 643; In the Matter of Bradner, 87 N. Y., 171, 177, where it is said, “ having submitted himself to the discretion of the court he cannot complain of the manner of its exercise.” Chapin v. Foster, 101 N. Y., 1; Vibbard v. Roderick, 51 Barb., 616; Matter of Tyng, 17 Wk. Dig., 234; Buffalo Ferry Co. v. Allen, 12 Civ. Pro., 64; 5 N. Y. State Rep., 146; Bartlett v. Stinton, L. R., 1 C. P., 484.

The conclusion is, that since the alleged error infects no element of the judgment, it is inoperative to impair the validity of the judgment.

It is proper, however, to add that, in our opinion, the sum awarded plaintiff for the value of the fee is not so extravagant as, on review by the general term, would authorize an inference of an abuse of discretion by the court below.'

Appellant contends further, that the error in the admission of the evidence affects the judgment for damages from depreciation of the rental value of the property. But the error, if any, was plainly of no prejudice to the defendant; because, first, the effect of the evidence in proof of rental value was extremely faint and r.anote; secondly, the depreciation of rental value was substantially the same upon the evidence of both parties; thirdly, where any discrepancy appears, the plaintiff’s estimate is supported by proof of the rent actually received; and fourthly, the sum allowed for depreciation of rental value is less than is shown by the evidence.

An obvious corollary from the proposition that the condition of defeasance attached to the injunction was purely gratuitous and discretionary, is that the defendant could not, of right, demand that the operation of the injunction should be suspended upon the acquisition of the property in controversy by a condemnation proceeding. Nor had the application for such suspension been addressed to the favor of the court, would it have been supported by any apparent equity, seeing that for ten years defendant had been an intruder upon plaintiff’s property, and yet has made no effort, by a legal method, to acquire the property it has so long and so lawlessly appropriated.

In the remaining allegations of error urged by appellants we perceive none of sufficient gravity to require a reversal of the judgment; and, accordingly, it must be affirmed, with costs.

Daly, Ch. J., and Bischoff, J., concur.


text:
    Felice Tocci, Resp’t, v. Pietro Arata et al., App’lts.

      (New York, Common Pleas, General Term,

      Filed January 5, 1891.)

    EvZDEMCB—CONTKACT.
    In pursuance of an agreement between the parties the plaintiff signed a ■writing stating that he agreed to advertise in his newspaper a book defendant was preparing,'in compensation for which defendant was to insert in such book advertisements for plaintiff and deliver him certain copies. This was not signed by defendant. Held, that parol evidence of defendant’s agreement, on the faith of which plaintiff agreed as in the writing indicated, was admissible.
    Appeal from a judgment in favor of plaintiff entered on the verdict of a jury rendered on a trial in the second judicial district court in an action for damages for breach of contract.

      George Zabriskie, for app’lts; Mr. Lord, for resp’t.
   Bischoff, J.

Plaintiff being the proprietor and publisher of two newspapers called respectively “ Eco DTtalia ” and the “ Re-vista,” and the defendants as copartners being about to publish a book called the “ Giude,” in the month of April, 1889, after some preliminary negotiations, entered into a contract whereby the plaintiff agreed to advertise the publication of the “ Giude ” in his newspapers, payment for which advertisements w.as to be made by the defendants by an advertisement of the plaintiff’s business to be inserted in the “ Giude ” and the gratuitious delivery to the plaintiff of 500 copies of defendant’s publication. ■

The following writing, purporting to express the plaintiff’s engagement, was signed and delivered by his authorized agent to the defendants:

“April 10—Memorandum.
“Mr. Tocci agrees to insert in the “ Aco,” daily, and in the Revista Italio Americana, an advertisement reclame to occupy half a column in the first page, to last and continue until publication of the “ Giude." In compensation, Mr. Arata will insert a top adv. in the Qiude Generate Italiana and fifteen pages of Tocci advertisements in the same Giude, and give five hundred copies of the same gratis, to be sent by Tocci to his clients in Italy.
' “(Signed.) Felice Tocci.
“Per M. Crevelli.”

Upon the trial the justicep ermitted the plaintiff, against the objection of defendants’ counsel, to introduce parol evidence of the terms of defendants’ engagement, upon the faith of which the plaintiff agreed as indicated in the writing hereinbefore set forth, and defendants’ exceptions to this ruling upon the trial present the only alleged errors which the record of this case calls upon us to consider. It is apparent from that record that if this parol evidence was properly admitted then the only question to be disposed of in the trial court was whether or not the parties to this action had performed their respective engagements, the plaintiff insisting that he had' furnished the requisite advertisements to entitle him to the delivery of the promised five hundred copies of the Giude, and the defendants, on the other hand, claiming that the plaintiff had not advertised the Giude as agreed and that he was not, for that reason, entitled to the delivery of such five hundred copies, and thus the question of the defendants’ liability in this action was one purely of fact, which it was the province of the jury to determine, and with which an appellate court should not interfere.

We do not think the parol evidence complained of in this appeal was improperly admitted. The writing was signed on behalf of the plaintiff only and did not undertake to bind the defendants. In such a case, it has been held by the court of appeals that the writing, while it may be prima facie evidence of the engagement of the party signing, does not preclude him from showing by parol what the undertaking of the party not signing was, and upon the faith of which undertaking the party signing agreed as in the writing indicated. See Routledge et al. v. Worthington Co., 119 N. Y., 592; 30 N. Y. State Rep., 195.

The same point is also fully considered in Curtis v. Soltau, just decided by the general term of this court, and the opinion in which is about to be announced. 34 U. Y. State Rep., 767. The cases cited determine the question presented on this appeal adversely to the appellants herein.

The judgment should be affirmed, with costs.

Bookstaver, J., concurs.


author: Daly, Ch. J.

text:
    Emma K. Ramsay, Resp’t, v. Reon Barnes, App’lt.

      (New York Common Pleas, General Term,

      Filed January 5, 1891.)

    1. Pleading—Admissions.
    A denial so worded as to put in issue in the precise words of the allegation certain averments of a paragraph of the complaint, and referring to that paragraph, which contains a charge of personal liability of defendant, and which yet avoids all reference to the latter, has all the force of an admission of the portion which is not denied.
    3. Same.
    In an action on a note signed by defendant as agent, the complaint alleged that on a subsequent day it was agreed between the parties that the_ matter was_ a personal one of defendant, and that he then owed plaintiff a certain sum, and that such sum was the true balance on the note. The answer denied that it was agreed between plaintiff and defendant that he owed her such sum, or that it was the true balance on the note, as alleged in that paragraph of the complaint. Held, that this was an admission of the agreement that the matter was a personal one of defendant, and neither the consideration nor any other question affecting its validity could be raised.
    3. Same—Limitation.
    A plaintiff is not bound to anticipate a plea of the statute of limitations by setting forth in his complaint the payments that he intends to rely on to take the case out of its operation, and may prove payments not alleged.
    Appeal by defendant from a judgment in favor of the plaintiff, for $480.35, with costs, rendered by the judge who tried the cause without a jury.
    The action was to recover $429.94, with interest from December 15, 1885, being the balance claimed to be due upon a certain promissory note made by defendant, as follows:
    “$550. New York, April 25, 1876.
    “ Two months after date I promise to pay to Jacob Ramsay, Jr., or order, $550 for value received with interest at the rate of 7 per cent per annum, having deposited with him as collateral security with authority to sell the same at public or private sale, on the non-performance of this promise and without notice, one bond for $500 of the North River & New York Steamboat Co., No. 171.
    “ G-aybert Barnes,
    “per Reon Barnes, Att’y.”

      I. M. Williams, for resp’t; John H. Post, for app’lt.
   Daly, Ch. J.

It was found by the trial judge, first, that the note in question was made and delivered by Reon Barnes for value received; second, that it was endorsed and delivered to the plaintiff by the payee for good and sufficient consideration together with the bond; and third, that thereafter and on or about March 14, 1877, it was agreed between the plaintiff and defendant that the matter was not one of G-aybert Barnes, but a personal one of the defendant, and that at that date he owed the plaintiff the sum of $518.55, and that that was the true balance due upon said note.

The first point of the appellant upon this appeal is that there is absolutely no evidence to support the third finding of fact, upon which alone the conclusion of law is based that plaintiff is entitled to judgment against defendant. It would seem that the appellant has overlooked the clear admission of this fact in the pleadings. The complaint alleges: “ Third: That thereafter and on or about the 14th day of March, 1877, it was agreed between the plaintiff and the defendant that the matter was not one of G-aybert Barnes, but a personal one of the defendant, and that at that date he owed the plaintiff the sum of $518.55, and that that was the true balance then due upon said note.

The only denial in the answer of these allegations is as follows: Third. Denies that it was agreed between the plaintiff and the defendant on or about March 14, 1877, that the defendant then owed the plaintiff the sum of $518.55, or that that sum was the true balance then due upon the said promissory note, as is alleged in the third paragraph of the complaint” A denial so worded as to put in issue in the precise words of the allegation certain averments of the third paragraph of the complaint, and referring expressly to that paragraph which contains the whole charge or statement of the personal obligation of the defendant, and which yet avoids all reference to the latter, has all the force of an express admission of the portion which is not denied.

It was not necessary for the plaintiff to give evidence of an allegation so admitted. It is claimed, however, that by introducing a •certain paper drawn up and delivered by the defendant on the 14th of March, 1877, but not signed by him, the plaintiff showed that there was no such transaction as alleged in the complaint. That paper recited that Reon Barnes had purchased the note and bond in question, and that $518.55 is the true balance due upon said purchase. It was offered by plaintiff as a memorandum made by defendant showing the amount admitted to be due, and the testimony was that it was given as an agreement as to the amount due. It was not an agreement; it was not enforceable against the defendant; it was a mere statement by him which cannot have the effect of destroying the force of his solemn admission in the pleadings as to the admission and agreement that the obligation to which he affixed the name of Graybert Barnes as principal and his own as attorney was in fact his own contract.

It is argued, however, that there was no consideration for any such agreement. As the agreement was admitted by the pleading, neither the question of consideration nor any other question affecting its validity could be raised. Besides, no such objection was made at the trial, when it might have been obviated by proof. The same consideration disposes of the suggestion that the note being signed on behalf of Graybert Barnes as principal it could not be shown by parol to be the engagement of a third party. Briggs v. Partridge, 64 N. Y., 363.

But even if the agreement had not been admitted in the pleadings, and even if the objection had' been taken at the trial, there is no force in this suggestion. For this is the case of a note signed by the party sought to be charged, though he signed it apparently as agent of another. A party may sign a note by any name he pleases, and if he intend to bind himself by it, he is liable upon it. De Witt v. Walton, 9 N. Y., 571; Brown v. Butchers & Drover's Bank, 6 Hill, 443. So in this case while Reon Barnes signs the name of Graybert Barnes with his own name as “ atty,” he admits and agrees that it is his obligation and therefore he is bound by it.

The remaining question upon this appeal arises under the statute of limitations which was pleaded as a defeñse, the note in question having matured on June 28, 1876, and the action having-been commenced on December 26, 1886. The plaintiff alleged in her complaint that the defendant made two payments of $20 each on account of said note, in or about March, 1878, and that she received $75 as a dividend upon the bond about January 1, 1880, and that on December 15, 1885, the defendant paid her $266.66, leaving the balance sued for of $429.94. The answer denies the making of any of these payments on account of the note, and denies any knowledge of the payment of any dividend upon the bond, and counterclaims the sum of $266.66 which he alleges he lent to the plaintiff on December 15, 1885. All of these payments were proved, and in addition a payment of $41 in 1883. Evidence of this last amount was objected to because not alleged in the complaint. But a plaintiff is not bound to anticipate a plea of the statute by setting forth in his complaint the-payments that he intends to rely upon to take the case out of its ■operation. Further objection is made that the circumstances under which the payment was made are not shown, and that proof of a mere payment of a particular sum is not evidence of an acknowledgment that more was due. It is sufficient answer that the witness was permitted without objection to state the several payments in answer to the question “ has anything been paid by the defendant on account of this amount due?” This question did not necessarily call for a conclusion nor an opinion of the witness, but. for a fact. He was not cross-examined as to the circumstances of each payment, nor was objection made that such circumstances-were not shown.- The testimony of payment was, therefore, competent as evidence of a part payment of an acknowledged indebtedness to the amount due.

As to the payment of $266.66 on December 15, 1885, which plaintiff claims to have been a payment on account, and which defendant claims to have been a loan made by him to plaintiff, the testimony, was conflicting, but there was ample evidence to sustain the finding. The plaintiff swore that she went to defendant and asked for money on account of the money loaned (for it appeared without contradiction that the note was originally given by defendant for a loan of money to him from the plaintiff through her brother, the payee of the note, and that the note was taken for her benefit), that she asked for the money to pay her rent, and he drew the check for her; the witness Jacob Ramsay testified that two days after he met defendant on the treasury steps on Wall street; 'that he was on the opposite side, and defendant whistled to him; he went over, and defendant said: “ I saw Emma the other day, and gave her $250 on account; now Jake, I will fix up the balance of that as soon as possible.” Defendant testified that no request was made for a payment, but that plaintiff called upon him and said she was in arrears for rent, and was about to be dispossessed, and he gave her his check payable to her order, 'and bearing on its face the statement “(for rent of No. 40 W-38th st. for mo. of Dec.)” The check was produced.

Upon the evidence of the original loan from plaintiff to defendant of the money for which this note was given (which, as I have said, was not contradicted), upon the admission in the pleading of an agreement that the note was his personal obligation, upon the guarded testimony given by him upon commission: “ No recollection of ever assuming the payment of the note set out in the complaint, or of agreeing with the plaintiff that I owed her the ■sum of $518.55, or any sum upon said note; and I think I never did; ” and upon the testimony of the plaintiff and her brother, as ■opposed to that of the defendant, there does not seem to have been room for any other conclusion than that arrived at by the learned trial judge upon the case before him.

The judgment should be affirmed, with costs.

Bischoff and Pryor, JJ., concur.


author: Brown, J.

text:
    The Union Cemetery Association et al., Resp’ts, v. The City of Buffalo, Daniel W. McConnell et al., App’lts.

      (Court of Appeals, Second Division,

      Filed January 14, 1891.)

    Municipal corporations—Assessment — Charter of Buffalo — Laws 1870, chap. 519, tit. 2, § 80.
    By the provisions of the charter of Buffalo money can be drawn from the treasury only on warrants authorized by the common council, signed by the mayor or city clerk and countersigned by the comptroller, specifying the purpose for which they are drawn and the fund out of which they are payable. A contract with one McConnell provided that payments should be made to him semi-monthly as the work progressed, at the discretion of the common council, upon an estimate of the engineer of the amount of work actually performed. The engineer, knowing that said contractor had not performed the work in accordance with the specifications, recommended to the common council payment out of the fund. Held, that such facts would not justify the court in restraining the city and its officers from performing its duty toward the contract or which the charter had plainly devolved upon them, of auditing the contractor’s bill and determining what sums shall be paid to him.
    Appeal from a judgment of the general term of the fifth judicial department, which affirmed in part and reversed in part a judgment of the special term entered upon the report of a referee.
    The judgment of the general term reversed that part of the special term judgment which declared certain assessments upon lands of the plaintiffs void, and enjoined the city of Buffalo from enforcing them, and affirmed that part of said judgment which restrained the said city from paying any money to the defendant McConnell upon a contract with him for macadamizing Delaware street in said city.

      George F. Stillwell, for app’lt, Daniel W. McConnell; Frank C. Laughlin, for app’lt, The City of Buffialo; Frank F. Perkins, for resp’ts.

       See 42 Hun, 651, mem.

   Brown, J.

This action,was brought by the Union Cemetery of Buffalo and six other plaintiffs to determine the legality of certain assessments upon the plaintiffs’ premises levied to pay the expenses of macadamizing Delaware street in the city of Buffalo, and. to enjoin the said city from enforcing the collection thereof ánd to restrain payment of any money to the defendant McConnell, who was the contractor for doing said work

The judgment entered upon the report of -the referee before ■ whom the action was tried declared said assessments void, restrained their collection, and enjoined the city and its officers from drawing any order or warrant or from directing any order or warrant to be drawn upon the fund created by said assessment to the defendant McConnell or any other person, on account of the work done on said Delaware street, until said work should be done and completed as required by the specifications and until.the further order of the court.

Upon appeal to the general term that court reversed that ¡Dart of the judgment which declared the assessments void and restrained their collection, and adjudged, “ that the judgment appealed from in so far as it restrains, enjoins and prevents the city of Buffalo, its officers and agents, and particularly the defendant, the treasurer of the city of Buffalo, and each and every of them, from paying out or expending any money from the fund created or to be created by the collection of the assessments contained in the assessment roll mentioned and referred to in the pleadings or any part of said assessments upon the warrants heretofore drawn upon said fund, etc., is affirmed."

From the last-quoted part of the judgment the city of Buffalo and the defendant McConnell have appealed to this court. We are of the opinion that the judgment appealed from cannot be sustained.

Without expressing any opinion whether an action might be maintained, under chapter 531 of the Laws of 1881, to restrain payments to the contractor upon the facts alleged in the complaint, it is sufficient to say that the action was not brought under that statute and by reason of obvious defects cannot now be supported by it, and that the findings of the referee do not sustain the general term judgment. There is no finding that McConnell holds or has ever had any orders or warrants that have not been paid. The only finding on that subject is, “ that there has been collected on said roll the^sum of $983.93, and there has been paid out on orders drawn thereon $619.” But treating the general term judgment as an affirmation of the special term and intended to restrain generally payments from the fund until the work was completed, the judgment must be reversed.

By the provisions of the charter, title 2, § 30, chap. 519, Laws of 1870, money can be drawn from the treasury only on warrants anthorized by the common council, signed by the mayor or city clerk, and countersigned by the comptroller, specifying the purpose for which they are drawn and the fund out of which they are payable.

The contract with McConnell provided that payments should be'made to him semi-monthly as the yrork progresses, at the discretion of the common council, upon an estimate of the engineer of the amount of work actually performed.

The only finding as to any wrong-doing by any city officer is that the city engineer, knowing that said contractor had not performed the work in accordance with the specifications, had recommended to the common "council payment to said contractor out of the fund.

There is no findiftg that the common council had adopted said recommendation, or were about to do so, or had fraudulently or wrongfully directed payments to said contractor, or that the mayor, city clerk or comptroller, without whose acts the money could not be drawn from the treasury, had or were threatening to do any wrong or improper act.

The case seems barren, therefore, of any fact that would justify the court in restraining the city and its officers from performing its duty toward the contract in question which the charter has plainly devolved upon them.

The record does not contain any opinion of the general term, and we are not informed of the reasons for the judgment of that learned court. As the case came to us, we must asume that the assessment and the contract with McConnell áre valid.

The plaintiffs’ contention is that as the work was not done in accordance with the specifications, and has not materially benefited or improved their property, the contractor should not be paid. Their claim is certainly reasonable and equitable, and the contractor should not be paid until he has performed his contract.

But the charter has devolved upon the common council the duty of auditing the contractor’s bills, and determining when, and in what sums, he should be paid, and, in the absence of any finding by the referee that that duty was not being properly and rightfully performed, the court cannot interfere.

We are of the opinion that the complaint states but one cause of action, and that assuming, as we must, that the assessments were legal, the judgment appealed from cannot be sustained on the facts found by the referee. It must, therefore, be reversed, and the complaint dismissed, with costs to the appellants in all courts.

All concur, except Bradley and Haight, JJ., not sitting.


author: Follett, Ch. J.

text:
    The Metropolitan Life Insurance Co., App’lt, v. Shibboleth B. McCoy, Resp’t.

      (Court of Appeals, Second Division,

      Filed January 14, 1891.)

    Estoppel—Seal on bond.
    In an action on a penal bond in which it was recited that it was executed under seal, the obligor is estopped from denying that it was so executed when it appears by his own evidence that he knew the difference in the legal effect between sealed and unsealed instruments, that he read, sub scribed and placed it in the custody of the person interested in having it accepted, when it also appears that that person sealed and delivered it to the obligee, who received and acted on it in good faith.
    Appeal from an order of the general term of the third judicial department, setting aside a verdict directed for the plaintiff and ordering a new trial, which was granted on a motion made in that court, pursuant to § 1000 of the Code of Civil Procedure.
    February 25, 1870, the plaintiff appointed George W. Sherman its agent, and thereafter he delivered to it the following bond:

      “ Know all men by these presents, that we, Eobert T. Sherman and S. B. McCoy, of the city of Albany, county of. Albany, state of New York, are held and firmly bound unto Metropolitan Life Insurance"Company of New York, in the sum of two thousand dollars, for which payment, well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and •severally, firmly by these presents.
    “ Sealed with our seals. Dated this ninth day of March, one "thousand eight hundred and seventy.
    “ The condition of this obligation is such that if George W. Sherman, who has been appointed an agent of the said Metropolitan Life Insurance Company of New York city, shall faithfully ■conform to all instructions and directions, which he, as such agent, may at any time receive from the said Metropolitan Life Insurance Company, and shall on the fifth day of each and every month remit to the office of the said Metropolitan Life Insurance Company all moneys received by him (not previously remitted) as such agent, less his commission, together with his account of the same, then the above obligation to be void, otherwise to remain in full force and virtue.
    “Sealed and delivered in the presence of:
    “Egbert T. Sherman, [l. s.]
    “ S. B. McCoy, [l. s.]
    “Witness:
    “I. C. Laass,
    “Geo. B. Fay,
    “Geo. W. Sherman.”
    George W. Sherman continued to act as agent until September, 1871, when he was found to be indebted to the company in about the sum of $1,600. The agent died February 16, 1880, and March 23rd of that year this action was begun against his sureties on the bond. Eobert T. Sherman pleaded in bar a discharge in bankruptcy and that he did not execute the bond under seal. The action was discontinued as to him, but continued against the respondent, who, on the'trial, amended his answer and interposed the plea that he never sealed the bond and that it had been materially altered by affixing a seal to his signature. The defendant testified that he neither sealed nor authorized any one to seal the bond and that he did not sign in the presence of either of the subscribing witnesses, and did not request either to sign nor did he see either sign. The other obligor testified that he executed the bond after the defendant and in the presence of Laass and Fay, who at his request signed as witnesses, and then he gave it to George W. Sherman, at which time no seal was affixed to the signature of either of the sureties. He further testified : “I do not know when those seals were put on; my brother George came in and asked me for a couple of seals and I gave them to him. That was after Mr. McCoy had signed it and it was after the other witnesses had signed it. * * * About that time George came to me and asked after seals and I gave them to him. * * * I went to McCoy’s lawyer a year and a half or -two years ago and spoke to him about it and told him I recollected the seal and would like to see the bond, as it was a black seal I had got from an old firm that went out of business years ago in Albany, and I gave George some of the seals. When I came to see the bond those black seals were on.”
    This evidence was uncontradicted and so was the testimony of the plaintiff’s agent, that when the bond was given to him it was sealed and in the same condition as it was at the trial. A verdict was directed for the plaintiff, neither party asking to go to the jury, and the exceptions were ordered heard in the first instance at the general term, where the verdict was set aside and a new trial granted. The plaintiff appealed from the order to this court.

      William H. Arnoux, for app'lt; Seymour Van Santvoord, for resp’t.

       Reversing 3 N. Y. State Rep., 781.

   Follett, Ch. J.

By signing the bond containing the recital that it was “ sealed with our seals. Dated this ninth day of March, eighteen hundred and seventy,” the defendant asserted in writing, over his own signature, in the most solemn manner, that the obligation was what a bond ex vi termini imports, a sealed instrument, and that it was sealed by him. The assertion was undoubtedly untrue, but it was made and put forth in the way best calculated, to deceive, as it did deceive, the obligee. Had the defendant intended in good faith to execute and deliver an unsealed instrument he should have stricken out the words quoted or have taken great care to have it delivered to the obligee as executed by him, but he did neither. He testified: “ I signed the bond, * * * at that time I knew the difference between a paper under seal and one not under seal. I would not sign it with a seal; too much force in a seal, extended the time too much, extended my liability too long. * * * I presume I read it before I signed it.” After the defendant had signed he turned the instrument over to the person for whose benefit it was given and whom he knew to be interested in procuring a bond executed in due form and acceptable to the obligee. Sherman then procured the signature of his brother and obtained from him the seals which he undoubtedly affixed to the signatures of the obligors. The fact that Sherman openly and evidently in good faith sealed and delivered it to the cpmpany, which received it in like good faith, is established by uncontradicted evidence. Under these circumstances the defendant should be held to be estopped by the recital and by his conduct from showing that he did not seal, or authorize the sealing of the bond.

The recital of a material fact in a bond which is accepted by the obligee and acted on in behalf of the truth of the statement estops the obligor from showing in an action on the bond that the recital is not true. Atlantic Dock Co. v. Leavitt, 54 N. Y., 35; Cady v. Eggleston, 11 Mass., 282-5; Dyer v. Rich. 1 Met., 180; Washington Co. Ins. Co. v. Colton, 26 Conn., 42; Tremble v. The State, 4 Blackford, 435; Big. Est, 5th ed., 382.

Gilkeson v. Humbird, 54 Md., 327, and Taylor v. Glaser, 2 S. & R., 502, are types of cases holding that when a penal bond is delivered to and received by the obligee without seals, a recital therein that it is sealed does not make it a specialty or estop the obligor from denying that he is liable as on a sealed instrument, a rule which no one would dispute, but which is not related to the case in hand. Barnet v. Abbott, 53 Vt., 120, is in point and holds that a recital in a bond that it is “ sealed with our seals ” is evidence that it was sealed when delivered, but not proof, and that the obligor may show that he neither sealed nor authorized it to be sealed. In that case, a person appointed to the office of town treasurer executed as principal with three sureties a bond purporting to be under seal, but the sureties did not affix seals to their signatures or authorize it to be done. The treasurer, at whose request the bond was executed, affixed seals and delivered the bond to the selectmen, and it was held in an action brought upon the bond against the sureties that they were not estopped from denying that they sealed or authorized the sealing of the bond.

The case last cited seems to be opposed in principle to those previously referred to, and to lay down a dangerous rule. A great variety of bonds are in use in this country, bonds conditioned to ■secure the payment of money, the performance of contracts, the faithful discharge of duties by trustees and by public officers, which recite that they are executed under seal and they generally are. It is usually impossible to prove the genuineness of the common law seal in use in this state, which consists simply of an impression made on a round bit of paper affixed to the instrument by mucilage or by a wafer. There are differences in signatures by which they may be identified and proved, but there are none in seals. Sometimes, though not usually, the execution of bonds is acknowledged, but many are not, and the ■certificate ordinarily used recites that the person named acknowledged that he executed the instrument, not that he signed, sealed .and delivered it, and the acknowledgment is but evidence, not proof, of due execution of the instrument acknowledged. Code ■Civil Procedure, §§ 935, 936, 937.

In an action on a penal bond in which it is recited that it is executed under seal, the obligor is estopped from denying that it was so executed when it appears by his own evidence that he knew the difference in the legal effect between sealed and unsealed instruments, that he read subscribed and placed it in the custody of the person interested in having it accepted, when it also appears that that person seals and delivers it to the obligee, who receives and acts on it in good faith. A different rule would open the way for cutting down by oral evidence the duration of obligations from twenty to six years.

The order should be reversed and a judgment ordered on the verdict in favor of the plaintiff, with costs.

All concur, except Parker, J., not sitting.


author: Parker, J.

text:
    Eliphalet Wood, App’lt, v. Valentine L. Lary, Resp’t.

      (Court of Appeals, Second Division,

      Filed January 14, 1891.)

    1. Appeal—Findings op pact—Code Orv. Pro., § 1022.
    In any case triable before a court without a jury or heard by a referee, if any evidence be presented, a decision stating separately the facts found and the conclusions of law 1 ased thereon must be made. If it be not done the judgment cannot be reviewed.
    3. Same.
    When a complaint is dismissed before the introduction of testimony or judgment is rendered on the pleading, § 1022, Code Civ. Pro., does not apply.
    Appeal from a judgment of the general term of the supreme court, first department,, entered on an order affirming a judgment of the special term.

      John C. Ten Eyck, for app’lt; Robert W. DeFreest and Marcus T. Run, for resp’t

       See 15 N. Y. State Rep., 209.

   Parker, J.

This was a suit in equity and the relief demanded, among other things, was that a certain mortgage be declared to be void and of no effect; that it be delivered up to be cancelled of •record; and that the bonds sought to be secured thereby be likewise delivered up for cancellation. The answer admitted certain allegations of the complaint specifically. Others it admitted in a qualified, manner making in connection therewith other allegations of fact by way of explanation and justification, and denied others.

The cause coming on for trial before a court without a jury, the plaintiff presented such evidence as he deemed necessary and rested. Thereupon the defendant made a motion to dismiss the complaint Decision was reserved. About two months later the court granted the motion to dismiss and a judgment was subsequently entered dismissing the complaint upon the merits of the case.

The appeal to this court from the judgment of affirmance thereof must be dismissed because the trial court failed to comply with the following provisions of § 1022 of the Code of Civil Procedure: “ The decision of the court or the report of the referee upon the trial of the whole issue of fact must state separately the facts found and the conclusions of law.” When a complaint is dismissed before the introduction of testimony it is a determination that the complaint does not state facts sufficient to constitute a cause of action and in such case a situation is presented which does not come within the purview of that section. Neither does a case where judgment is rendered on the pleadings. Eaton v. Wells, 82 N. Y., 576. But in any and every case triable before a court without a jury .or heard by a referee if any evidence be presented, a decision stating separately the facts found and the conclusions of law based thereon must be made. If it be not done the judgment cannot be reviewed. Bridger v. Weeks, 30 N. Y, 328.

The Code afforded to the plaintiff ample opportunity for protection against the omission of the court. (§ 1010.) But he did not avail himself of it. He did not even submit in writing a statement of facts which he deemed established, and desired the court to find as provided by § 1023.

A difference of opinion has heretofore existed in several of the departments as to the conditions which bring a case within the command of § 1022. Colton v. Ranson, 2 N. Y. State Rep., 78; Benjamin v. Allen, 7 Civ. Pro., 202; Rousseau v. Bleau, 29 N. Y. State Rep., 334; Grange v. Palmer, 31 id., 612; Bishop v. Empire Trans. Co., 37 Supr. Ct., 12.

An examination of the questions to which the counsel for the appellant called our attention at the argument led to the conclusion that no error was committed at general term, but as we have concluded that the appeal ought to be dismissed, the occasion does not call for an expression of the reasons inducing such conclusion.

The appeal should be dismissed.

All concur, except Bradley, J., not voting.