author: Daniels, J.

text:
    Kate Reynolds, Resp’t, v. Catherine Cleary, App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 30, 1891.)

    1. Vendor and purchaser—Title—Restrictive covenants.
    A covenant in a deed against the use of the premises for any purpose inconsistent with private residences, which runs with the land, is an incumbrance upon the land, notwithstanding proof that it may have become obsolete by the use of the neighboring property for purposes other than residences, where such proof is not sufficient to exclude the probability of future litigation for the purpose of maintaining or contesting the continued validity of the covenant.

      2. Same—Fobbcdosube—Advebse possession.
    The title to the premises in question came through a foreclosure, in which some of the parties were served by publication based on insufficient affidavit. It was shown that a blacksmith shop had been upon part of the property for twenty years, in possession of plaintiff and his grantors, but how much of the land it covered was not shown. Held, that the title was not one which a vendee was bound to accept.
    Appeal from a judgment recovered on trial at the special term.

      George W. Mc Adam, for app’lt; Richard O'Gorman, for resp’t.
   Daniels, J.

The action was -brought upon a contract for the sale and conveyance of real estate known as 527 West Forty-fifth street, in the city of New York. By the contract the defendant covenanted to execute and deliver to the plaintiff “a proper deed, containing a general warranty and the usual full covenants for the conveying and assuring to her, or them, the fee simple of the said premises free from all encumbrance except as aforesaid,” which exception included a mortgage upon the property, amounting to the sum of $5,000. A deed was tendered for the performance of the agreement, which was refused by the plaintiff.

This refusal was placed upon several grounds, including what was alleged to have been a defective foreclosure of a mortgage through which a portion of the title to the property was acquired. And also concerning a covenant contained in two deeds through which the title passed, by which the grantees in such deeds were made to covenant with the grantor “that neither the said parties of the second-part nor their heirs shall or will at any time hereafter erect or permit upon any part of the lots of land above described any slaughter house, tallow chandlery, glue factory, bone factory, or factory for the boiling or grinding of bones, varnish factory, vitriol factory, distillery, brewery or factory for tanning or dressing hides or skins, or any noxious or dangerous trade or business; and that in every conveyance of the said premises, or of any part thereof, by the said parties of the second part or their heirs, they shall insert or cause to be inserted a covenant on the part of their grantee or grantees, that the said grantee or grantees, or his or their heirs, will not erect or permit upon any part of the premises conveyed to him or them any slaughter house, tallow chandlery, glue factory, bone factory, or factory for the boiling or grinding of bones, varnish factory, vitriol factory, distillery, brewery or factory for tanning or dressing hides or sldns, or any noxious or dangerous trade or business, and it is agreed that these covenants shall run with the land.”

The court at the trial did not definitely pass upon the objection raised to the title arising upon this covenant. And it was made to appear in 'answer to the objection that the property in the vicinity of that.which is now in controversy had been devoted to the carrying on and transaction of various descriptions of business, and not as residence property. And it may be from the evidence in the case that this covenant might be held to have become obsolete and inoperative. Trustees, etc., v. Thacher, 87 N. Y., 311.

But that was not so surely established as a matter of fact, as to exclude the probability of future litigation for the purpose of maintaining, or contesting, the continued force and validity of this covenant The case in this respect differs from that of Clement v. Burtis, 121 N. Y., 708; 31 St. Rep., 902, where the covenant related alone to what would probably be a nuisance upon the property, while the covenant in the present case included all such uses of the property as were inconsistent with private residences. And if it shall be continued and maintained, it constituted an incumbrance upon this land. Wetmore v. Bruce, 118 N. Y., 319; 28 St. Rep. 687.

The particular objection upon which it was held that the plaintiff was not bound to accept this title was, that the interest of Austin and James Steele, which they had acquired in the property, was not extinguished, or conveyed to the purchaser, by the judgment and sale in the foreclosure action. Neither of these persons was" personally served with the summons in the foreclosure suit, but they were proceeded against by the publication of the summons under an order made in August, 1860, for that purpose. To entitle the plaintiff in the action to that order, under § 135 of the Code of Procedure, which was then the law prescrib-. ing the practice, it was necessary that it should appear from the affidavit that the persons on whom the service was to be made could not, after due diligence, be found within the state. But the affidavit upon which the order of publication was made contained no reference or statement whatever -to this subject It was made wholly upon information, as loosely and unsatisfactory as it could possibly have been drawn, and was clearly insufficient to comply with this requirement of tbe statute. That was a means by which jurisdiction over the absent defendants was to be obtained, and the proceeding was clearly pointed out and prescribed by the statute. And as it was not complied with, jurisdiction over the subject was necessarily not obtained- by the judge making the order of publication. As the law was then in force it was an essential necessity that the affidavit should show that the summons could not be served upon either of these defendants in the exercise of due diligence observed for that purpose. But this affidavit wholly failed to make any reference whatever to that subject. A question of similar import was examined in the case of Carleton v. Carleton, 85 N. Y., 313, where it was said that: “ The court or judge to whom the application is made must .be satisfied as to the sufficiency of the evidence that due diligence has been used to find the defendant within the state, and that after such diligence he cannot be found therein.” Id., 314. In this case the affidavit was wholly silent on the subject of the exercise of this statutory diligence, and it entirely failed to present any evidence that any effort had been made to find or serve the summons upon either of these defendants. And Peck v. Cook, 41 Barb., 549, is an additional authority establishing the indispensable necessity of such proof before the order of publication could be obtained under this provision of the statute. And Greenbaum v. Dwyer, 66 How., 266, follows the same construction.

The same section of the Code of Procedure also required that the order should direct a copy of the summons to be forthwith deposited in the post office, directed to the person to be served at his place of residence, unless it appeared that it was unknown to the party making the application, or could not with reasonable diligence be ascertained by him. The order for publication of the summons in this foreclosure action contained no such direction. But it directed that the summons in the action be served upon the defendants Austin and James Steele, and their wives, by publishing the same once a week for twelve weeks, etc., and at the same time depositing a summons and copy of the complaint in this action, addressed to the said defendants severally at their last known place of residence as hereinbefore mentioned, and paying the postage thereon.” This direction was so far from being a compliance with the requirement of the law that it left the party at liberty to deposit the summons and copy of the complaint addressed to the defendants in the post office at any time during which the publication progressed. That publication was to be once a week for twelve weeks, and at the same time this deposit of the summons and complaint in the post office was allowed to be made.

It has been urged that these defects in the foreclosure proceedings have been substantially avoided or removed by the subsequent possession of this property. And for that purpose it was shown that the land had been in the possession of Timothy Cleary, and that before his possession there had been erected and maintained a blacksmith shop upon a part of the property, and that there were sheds standing upon its rear. But how much of the land was covered in this manner he was unable to say. But according to his recollection these buildings were upon the lot before 1872, and extending back twenty-six years prior to the trial, and that the grantor of the premises to his wife put the present building upon the land in 1871. It was further shown by James Talon that he had a blacksmith shop on the lot, and he purchased the property in September, 1864, and remained in the possession of it until it was conveyed to William Meikle, who was the grantor of the plaintiff The evidence upon this subject of possession was weak and indeterminate. It might be sufficient to induce a jury to conclude that the entire lot had been held adversely by these parties for a period exceeding twenty years. And so a jury would also be at liberty to find as a matter of fact that there had been no adverse holding of the entire lot during that period. The question would necessarily be one of fact, depending upon the testimony of witnesses having knowledge of the manner in which the premises had been occupied and used. It would at the best leave the title in a controverted condition, attended with the risk that these persons upon whom this service of the summons was made by publication would still be at liberty to redeem their interest in the property from the foreclosure and sale. And when that is' the nature of the proceeding, a party entitled to such a conveyance as it was covenanted the plaintiff should receive, is not bound legally to accept the title. Shriver v. Shriver, 86 N. Y., 576, 584-5 ; Aldrich v. Bailey, 28 St. Rep., 571; Fleming v. Burnham, 100 N. Y., 1.

The case in this respect is quite distinguishable from that of Ottinger v. Strasburger, 33 Hun, 466, which was affirmed in 102 N. Y., 692. There the evidence was substantial, and to a reasonable degree certain, that the title had become firmly established by the possession which had been enjoyed and held under the different devises and deed. But in this action such was not the fact, for the evidence was loose and. indecisive, leaving the title to this lot subject to a probability at least of future controversy and litigation. And such a title is not required to be accepted by the vendee in a contract for the conveyance of land with the covenants mentioned in this agreement. Vought v. Williams, 120 N. Y., 253 ; 30 St. Rep., 899.

The judgment rendered for the recovery of the amount paid by the plaintiff, and the expense of searching the title, was authorized by the facts, and it should be affirmed, with costs.

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


source: Caselaw Access Project

author: Ingraham, J.

license: Public Domain

text:
    Benjamin P. Johnston, Resp’t, v. The Manhattan Railway Co. et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed November 30, 1891.)

    1. Railroad—Elevated—Juey.
    The mere allegation, in a complaint against an elevated railroad company that the trespass upon real estate is unauthorized and is a nuisance, with a demand that the continuance of such trespass he enjoined, does not make the action one for a nuisance so as to make it triable by jury.
    2. Same—Damases.
    Evidence of damages to adjoining property bearing the same relative situation to the railroad as plaintiff’s property, is sufficient to justify the court in finding that the railroad structure affected plaintiff’s property in the same manner.
    Appeal from judgment entered on decision of the court at special term.

      Samuel Blythe Rodgers, for app’lts; E. W. Tyler, for resp’t.
   Ingraham, J.

The complaint in this action alleges that plaintiff is the owner of premises abutting on South Fifth avenue, in the city of ¡New York.

That as an incident and appurtenant to plaintiff's ownership and occupancy of such premises the plaintiff has and had a right, interest and easement in South Fifth avenue of free and unimpaired use for the usual and ordinary purposes of a public street or highway. That plaintiff is seized and possessed of a portion, of South Fifth avenue immediately in front of and adjoining the premises before described to the centre of the street.

And the complaint further contains allegations tending to show that the defendants, by the erection and maintenance of the railroad structure, have appropriated plaintiff’s easement in the street and such erection and maintenance of such railroad and structure is a trespass upon plaintiff’s property.

The only allegation in the complaint from which it could be claimed that the action is to abate a nuisance is the allegation that the structure of the defendants as it now exists and as above described has been erected and maintained without legal right, and is a special nuisance and injury to his, plaintiff’s, premises.

A consideration of the whole complaint shows that the action is not an action to abate a nuisance, but is an action to restrain a continuing trespass, and as such clearly an equitable action.

No motion was made by defendant to frame any issue to be tried by the j ury, nor was the plaintiff asked to elect on the trial as to whether he maintained his action as an action to abate a nuisance, or an action to restrain a continuing trespass.

Defendants asked the court to send the action to be tried by a jury on the ground among others that the cause of action, if any, was a nuisance, and that motion was properly denied as the cause of action set up in the complaint is clearly an action to restrain a trespass.

In the case of Cogswell v. N. Y., N. H. & H. R. R. Co., 105 N. Y., 321; 7 St. Rep., 203, it was held that an action in -which the complaint prays judgment for damages and the abatement of the nuisance complained of, and also for an injunction restraining the defendants from continuing the nuisance and permitting its lands to be used for the purpose of carrying on any business thereon which shall injure the plaintiff in the enjoyment of her property, was not an action for a nuisance within § 968 of the Code.

That reading this section in connection with §1660 it was held that an equitable action to restrain the continuance of the nuisance is not an action for nuisance within § 968.

The mere allegation in the complaint that the trespass upon real estate is unauthorized and is a nuisance, and asking that the continuance of such trespass be enjoined, would not in view of this decision above cited, make the action one for a nuisance to which the plaintiff is entitled as matter of right to a trial by jury.

The point is taken by defendants that the findings that the defendants’ structure and tracks and the operation of its trains of cars have injured the plaintiff’s casement of light and air in the lower part of the building to- some extent, and the fourteenth finding, that cinders have, ever since the operation of such structure, fallen and do fall from said cars, engines and passing trains upon the street and sidewalk in front of said premises and upon and into said buildings, was entirely unsupported with evidence.

Counsel stated in his brief that the case will be searched in vain for a scintilla of evidence to sustain this finding and we are asked to reverse the judgment because this finding is entirely unsupported by evidence.

If there is any evidence to support the finding the court will not review the question of fact, as the case does not contain a statement that all of the testimony taken upon the trial is included within the case as settled.

An examination of the record shows that Frederick Schaffer swore that the trains interfered with, the light, very often making a continual fluttering, very annoying, and that there are cinders and dust coming from the elevated railroad, and describing the way in which the cinders and dust from the railroad affected his business.

Witness Hammerfield also testified that as the elevated trains pass it is often dark and that he could not keep the door open because it caused so much noise.

The witness Miles also testified in answer to the question: Q. What have you observed in respect to the physical operation of the elevated railroad ? A. I found train dust, ashes, cinders and smoke coming into my apartments to such an extent as to be a nuisance; and that it came from both the north and south,” and that his house is the same distance from the structure as the other houses up the street; that the railroad runs in the middle of the street.

It is true that none of these witnesses testify directly that the smoke and cinders went upon the plaintiff’s, property, but they testified as to adjoining property, the railroad being situated the same relatively to such property as to that of the plaintiff’s, and we think that this evidence was sufficient to justify the court in finding that the elevated railroad structure affected plaintiff’s property as it affected adjoining property.

The other questions presented on this appeal have all been passed upon adversely to the defendants by this court and do not require further notice. The amount allowed appears to be reasonable and we see no reason to disturb the judgment.

Judgment affirmed, with costs.

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


author: Brown, J.

text:
    The First National Bank of Jersey City, App’lt, v. Archibald Lamon, Impleaded, Resp’t.

      (Court of Appeals, Second Division,

      Filed December 22, 1891.)

    1. Manufacturing companies-—Failure to file annual report.
    Defendant was elected a trustee of a manufacturing corporation in 1880. He claimed that he never acted as trustee, hut in December, 1886, in a proceeding to dissolve the corporation he had sworn that he was a trustee and referred to his co-trustees. Upon the trial of this action he swore that he did not understand when he swore to said affidavit that he was stating that he was then a trustee, hut that he was once a trustee. Held, that it was for the trial court to determine the weight to be given to de endant’s explanation of the affidavits.
    2. Same.
    The mere fact of an application hy the attorney general at the instance of two of the trustees for the dissolution of a manufacturing company upon grounds undisclosed, half of the trustees actively opposing the application, does r-'t relieve them from the duty of making and filing the annual report.
    Appeal from an order of the general term of the first judicial department, reversing a judgment entered upon a report of a referee and granting a new trial.

      Hamilton Wallis, for app’lt; W. J. Townsend, for resp’t.

       Reversing 29 St. Rep., 181.

   Brown, J.

This action was brought by the plaintiff, a creditor •of the Atlantic Steam Engine Works, a corporation organized •under the general manufacturing act, to enforce a personal liability of the defendant as a trustee of such corporation for failure "to file in January, 1887, the annual report required to be filed by .the twelfth section of the act referred to.

Two defenses are made to the action; first, that the defendant was not a trustee of said corporation at the time of the default in ■filing the report; and second, that the trustees were under no obligation to file a report in January, 1887.

It appeared upon the first defense that the defendant was elected a trustee in the year 1880. No subsequent election was ever held. He testified that after the expiration of a year from his • election he had nothing to do with the affairs of the company other than to perform his duties as foreman of the shop, which consisted in laying out the work and hiring men. He never attended any meeting of the trustees and was not notified to attend ■any and was never consulted by the officers about any business of vthe corporation.

It appeared, however, that in December, 1886, an application "was made to the attorney-general to bring an action to dissolve the corporation, which was opposed by the defendant, and upon "the hearing before that officer the defendant made and read an .affidavit in which he swore that he was a trustee of the corporation, and referred to the officers thereof as his co-trustees. That the attorney-general having commenced an action to dissolve the -corporation, a motion was made therein for the appointment of a receiver, which motion was opposed by the defendant upon his .affidavit, in which he reiterated the statement that he was a trustee. Hpon the trial of this action the defendant testified that he •did not understand, when he signed and swore to said affidavits, "-that he was making a statement that he was at that time a trustee, but intended to state, and supposed that he had stated, that he was once a trustee of the company.

The weight to be given to the defendant’s explanation of the affidavits was for the trial court to determine. He was not bound to hold over after the expiration of the term for which he was elected, and he was not bound to act after that time, but he might with the consent of the stockholders do so. His affidavits were to the effect that he had held over, and the referee’s conclusion having been adverse to the defendant, and the general term not • having reversed that finding, we cannot say that there is no evi-Aence to sustain it. We must, therefore, accept as established the fact that the defendant was a trustee at the time default is alleged in the filing of the report.

The general term sustained the second defense. The facts upon •which that defense rests are undisputed, and are as follows : The •corporation ceased work in its shops between the 10th and 15th ■of December, 1886. The cause of the suspension is not stated, ff'he buildings were locked, and the men in its employ were discharged, and after that time no work of any kind was done.

On December 29th application was made to the attorney-general by two of the four trustees to bring an action to dissolve the-corporation. The hearing was adjourned to January 6, 1887, and on January 15th an action was commenced. Neither the grounds of the application to the attorney-general or the grounds-of the action commenced by him appear.

On January 18th an order was granted, returnable on the 20th, to show cause why a receiver of 'the corporation should not be appointed, which order restrained creditors from issuing executions against the company’s property, and on March 7, 1887, a receiver was appointed.

The question presented is, was the corporation under the circumstances stated relieved from making and filing the annual report..

This court had decided that on the appointment of a receiver-of a manufacturing company, the corporation is so far dissolved. that thereafter the duty is no longer upon the trustees to make the report, Huguenot Bank v. Studwell, 74 N. Y., 621, and that, when the corporation has been practically abandoned, the requirement as to filing reports does not apply to the trustees. Losee v. Bullard, 79 N. Y., 404; Bruce v. Platt, 80 id., 379 ; Van Amburgh v. Baker, 81 id., 46.

In Losee v. Bullard, the default was alleged to have been made-in 1873, and it appeared that the corporation had suspended business in 1865, and never resumed, and had contracted no debts after that time.

In Bruce v. Platt, the alleged default was in January, 1875,. but more than a year previous all the property of the corporation had been sold under execution, and from that time the corporation had no property or business, no means of procuring money, and no ability or intention of resuming business.

The result of these cases is summed up by Judge Danforth in Kirkland v. Kille, 99 N. Y., 390-395, as follows: When the-condition of the company is such that the end and object for which it was formed are destroyed, and there is neither an ability or intention on its part at any time to further prosecute its business, it is no longer required to make the report mentioned in § 12. of the manufacturing act.

This case does not fall within the rules enunciated in any of the-cases cited. The corporation was not in the hands of a receiver at the time of the default. Nor does the evidence show that it was insolvent. Nor had its franchise been abandoned. On the contrary it appears that the notes held by the plaintiff had been given in September and October, 1886, and matured subsequent to January 20, 1887, and up to December 15 it was engaged actually in the prosecution of its business.

At the time it closed its shops the defendant testified that it: owned real estate and other property of the value of $60,000,. and about the same time it borrowed a large sum of money from the Brooklyn bank, and gave a mortgage to secure such loan upon its property, and that it was then solvent and had a large surplus-over and above its debts.

The action to dissolve the corporation was opposed by two out, of the four trustees, and there is nothing in the evidence to indi-cate that the object for which it was formed was destroyed or -abandoned, or that there was not ability to resume its business.

Under the circumstances, the trustees were not relieved from rthe duty imposed by the statute to file the annual report.

In Sanborn v. Lefferts, 58 N. Y., 179, the defendant was sued as a trustee for failure to file a report in January, 1870. It appeared that in October, 1869, the trustees had resolved to discontinue business owing to the embarrassed condition of the company and wind up its affairs, and that in the early part of January its property was sold.

This court decided that these facts did not exempt the trustees from the statutory consequence of a failure to file the prescribed report.

The facts in Sanborn v. Lefferts were stronger for the defendant than in the case before us. Here there was no action by the corporation with a view to the discontinuance of business or abandonment of its franchise, nor was there acquiescence in such a course by the trustees or stockholders, and we are of the opinion that the mere fact of an application by the attorney general at the in,-stance of two of the trustees for a dissolution of the corporation upon grounds undisclosed so far as this action is concerned, and 'in view of the active opposition thereto by half of the trustees, did not relieve them from the duty of making and filing the annual report.

The order of the general term must be reversed, and the judgement entered on the referee’s report affirmed.

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


author: Haight, J.

text:
    Sophie E. Minton, Resp’t, v. The New York Elevated Railroad Co. et al., App’lts.

      (Court of Appeals, Second Division,

      Filed December 22, 1891.)

    1. Railroad—Elevated—Trespass by—Who may maintain action fob.
    S. executed instruments in writing purporting to convey the premises in question to W-, hut in fact intended as collateral security for advances made by W. to S. Subsequently, W., at the request of S., for good consideration, gave plaintiff a deed of the premises. Held, that if plaintiff purchased bona fide without notice that W.’s deeds were intended as a security, she obtained a good title, and could bring an action against defendant for trespass.
    2. Same—When possession is not notice—Estoppel.
    S. collected the rents down to the time plaintiff entered into possession, and then ceased to do so, and testified that the conveyance to plaintiff was with his consent and upon an agreement that W. was to turn over the balance to him and that his debt was paid. Held, that these circumstances took the case out of the rule that possession was notice to the person purchasing, and that 8. was estopped from asserting or maintaining any claim to the title or right to redeem.
    Appeal from a judgment of the general term of the superior -court of the city of Hew York, affirming a judgment entered upon, .a decision.

      Julien T. Davies and Samuel B. Rogers, for app’lts; G. Willett Van Nest, for resp’t

       Affirming 29 St. Rep., 527.

   Haight, J.

The judgment appealed from enjoins the defendants from the further maintenance of their elevated railway im Pearl street in the city of New York in front of the plaintiff’s-premises abutting upon that street and known as Nos. 95 and 97,, unless the defendants pay to the. plaintiff the sum of $9,500, as the-value of the easements appurtenant to the premises taken by the-maintenance and operation of the road.

The trial court has found as a fact that the plaintiff “ is now and has been since the 27th day of November, 1882, seized of an-estate of inheritance in fee simple absolute in the premises, * * *" and has since the said 27th day of November, 1882, been and. now is possessed of said premises through her agents and servants.” An exception was taken to this finding which presents-the only question we are called upon to determine.

The facts are substantially without dispute. At the time of' the construction of the elevated railroad the premises in question were owned by one John Steward, who had leased the same to-tenants who were in the actual possession thereof. On November 21, 1878, and December 21, 1878, Steward executed and delivered to Charles Gr. Wolff two instruments in writing under seal purporting to convey the premises to Wolff. But the instruments were in fact given, received and intended by both parties thereto as collateral security for advances of money made- and to be made by Wolff to Steward. On November 22, 1882,,, Wolff executed and delivered to Sophie E. Minton, the plaintiff, a. deed of the premises in consideration of the sum of $50,000,, which she paid by assuming a mortgage of $30,000 then outstanding upon the property, and the balance in cask This deed was executed by Wolff at the request of Steward, and they both intended that the deed to the plaintiff should convey to her the fee. There is no pretense but that the plaintiff paid full value for the premises. If, therefore, she purchased bona fide without, notice that Wolff’s deeds were intended as a security for the loans of money, she obtained a good title. Whittick v. Kane, 1 Paige’s Ch., 202; White v. Moore, id., 551 ; Berdell v. Berdell, 33 Hun, 536; Meehan v. Forrester, 52 N. Y., 277.

There is no evidence showing that the plaintiff had actual notice, but it is contended that she had constructive notice, from, the fact that Steward was in possession through his tenants, and that because she failed to make inquiry of them as to the title-under which they held, she should be treated as though she had actual notice.

We are aware of the general rule that possession is notice to the-person proposing to purchase of the rights of the occupant, but, question its application in this case under the facts disclosed.

As we have seen, the trial -court has found that the plaintiff entered into possession on the same day that she received her deed. And the inference to be drawn from the testimony is that possession was given her by the agent or broker of Steward, and with his consent Steward testified that he collected the rents after-1878 ; that he collected in the years 1880, 1881 and 1882 ; that' that was the last He could not tell when he ceased to collect rents, for lie did not remember when the premises were conveyed.. The date of the deed to the plaintiff was, as we have shown,. November 22, 1882. He ceased to collect the rent in that year, and it is quite apparent that he intended to be understood that he collected the rents down to the time that the premises were conveyed, and then stopped. Again he testified: “ The conveyance made by Wolff to Minton was with my consent. I had authorized him for some time to sell the property; he was authorized to sell the property and to pay me the difference after it was sold from the balance in his hands. There were no writings about it. Mr. Wolff acted as my broker. That is the amount of it; 1 employed him. He was my broker in the matter of borrowing the money in connection with the transactions in which I raised the money.. They were transactions of a mercantile character.” Steward further stated that his debt had been paid off; that he did not know of the transaction between Wolff and Minton at the time the property was sold on that particular day, or what consideration passed between them. He could not tell the precise amount, but had a general idea of the amount, and could not tell whether his debt was paid before or after the conveyance to Minton. Wolff testified that the sale to Minton “was made after conversation with Mr. Steward upon the subject and with his authority.” This testimony, with the inference to be drawn therefrom, appears to us to clearly establish the facts as above stated, and consequently to take the case out of the general rule.

We are also of the opinion that Steward is now estopped from asserting or maintaining any claim to the title or right to redeem. As we have seen the sale to the plaintiff was made with his knowledge, consent and authority. It was made by his broker who was employed for that purpose, and authorized to sell. Steward had the benefits of the proceeds of the sale. The thirty thousand dollar mortgage was assumed by the plaintiff and Steward says his-debt to Wolff was paid Wolff says the balance of the purchase price after paying taxes, etc., was applied by him on Steward’s-indebtedness. Steward has ever since acquiesced in the sale and still continues to do so. Can he now, after reaping the benefits, be permitted to complain of the transaction and establish a claim to the property ? We think not. It would be in violation of well established rules, and contrary to the principles of equity. Wilson v. Parshall, 27 St. Rep., 178; Gennerich v. Ulrich, 35 id., 144; Noxon v. Glen, 2 id., 661; McNeil v. The Tenth National Bank, 46 N. Y., 325; The Merchants' Bank of Canada v. Livingston, 74 id., 223.

The other questions involved have been recently disposed of Pappenheim v. Metropolitan R. Co., 40 St. Rep., 445; Lynch v. Same, 129 N. Y., ; 41 St. Rep., 541.

The judgment should be affirmed, with costs.

All concur.


author: Parker, J.

text:
    John Dye, Resp’t, v. The Delaware, Lackawanna & Western Railroad Co., App’lt.

      (Court of Appeals, Second Division,

      Filed December 22, 1891.)

    1. Master and servant—Injury while coupling cars—Evidence of SIMILAR ACCIDENTS INCOMPETENT.
    Upon the trial of an action by a switchman for damage? for injuries sustained while coupling cars, through the deadwoods overlapping each other, the defendant claiming that the overlapping or absence of dead-woods was of common occurrence and well known to plaintiff, the latter was permitted to show that similar accidents had occurred on defendant’s road prior to the one in question. Held, error; as the evidence had no legitimate bearing on the questions in issue and might have encouraged the jury to give a larger verdict than they otherwise would.
    2. Same.
    While such evidence may be competent in a class of cases where it is important to show that the defendant had notice or was warned of the dangerous character of municipal sidewalks, or of the inadequacy of facilities provided for the passage of passengers to and from trains over the company’s premises, the exceptions to the rule should not be so extended as to permit such testimony in a case where it can have no bearing whatever on the issues.
    Appeal from a judgment of the general term of the superior 'court of Buffalo, entered on an order affirming a judgment entered in favor of the plaintiff on the verdict of a jury.
    The recovery had in this action was for personal injuries sustained by the plaintiff, an employee of the defendant, on the 17th •of October, 1887, while he was engaged in coupling cars. The cars which he was attempting to couple he described as a jimmy and a chronic car. The jimmy was a four-wheeled coal car, considerably lower than the eight-wheeled car which he called a chronic car. So when the two cars came together the dead-woods of the eight-wheeled car, instead of meeting the dead-woods of the jimmy, thus keeping the cars at a sufficient distance apart to enable a person to stand between them, overlapped, •causing the cars to come so nearly together that the plaintiff was .severely injured.
    The plaintiff commenced working on rail roads about fifteen years prior to the accident, during which time he had served in •different capacities, such as brakeman, baggageman and switch-man.
    At the time of the accident and for several months prior he had been a member of a switching gang connected with the work of making up and distributing trains between the yard at East Buffalo ■and the yard at the foot of Erie street At the East Buffalo yard the trains coming from the east are broken up and distributed by switch engines and their crews. Loaded and unloaded cars are brought from different points in the city, including other railroad yards, by the switch engines, to the yard at East Buffalo, and are there made up into trains to go east. The crews connected with ■the switch engines do all the switching, coupling and uncoupling ¡required in this Business, and it was of such a crew that the plaintiff was a member.
    It appears that on defendant’s railroad there are a number of different kinds of cars in use, on some of which, there are no dead-woods at all, while on others there are short dead-woods. And the evidence tended to show that it was a matter of frequent occurrence-that when the jimmies and the eight-wheeled cars came together the dead-woods would overlap, and the switchmen in doing their work had daily to make couplings between such cars. The plaintiff, however, denied having any knowledge that such dead-woods-would overlap prior to the happening of the accident.

      John G. Milburn, for app’lt; Ernest K. Weaver, for resp’t.
   Parker, J.

An exception taken to the admission of certain-testimony against the objection of the appellant requires a reversal of the judgment.

The defendant did not attempt to controvert the claim of the plaintiff that his injury was occasioned by the overlapping of the-dead-woods of the jimmy and the eight-wheeled car, thus permitting the cars to come so close together as to necefsarily severely injure a person who happened-to be between them at the time; nor was it pretended that the difference in the height of the dead-woods of the respective cars did not render their coupling in the-ordinary and usual way dangerous. On the contrary, the defendant not only conceded but introduced testimony tending to show that it had in use on its road many different kinds of cars, some-without any dead-woods whatever. That, in addition, there carneen its road m the regular course of business cars from other railroads, differing in their height, method of construction and mode of coupling.

It sought to show that these facts were well known to the plaintiff and to the members of the various switching crews, who,, as a part of their work, were obliged to couple and uncouple cars for distribution from the yard in East Buffalo to various other points in the city, and for collection from the yards of other railroads for the purpose of making them up into solid trains to go-east. Its object was to bring the plaintiff within the rule, that an employee who enters upon the discharge of duties which he understands to be dangerous, and continues in such employment of-ter becoming fully aware of the faults of construction which render his work particularly hazardous, will be deemed to have-assumed all the obvious risks incident to such employment.

This being the ground on which the defendant mainly claimed freedom from liability, the plaintiff was nevertheless permitted to show after he had rested his case and on the cross-examination of one of defendant’s witnesses, against the objection of the defendant, that similiar accidents had occured on defendant’s road prior to the one in question.

It is not seen how this evidence could have any legitimate-bearing on the questions in issue, while it may have had the effect to encourage the jury to give a larger verdict against the defendant than they otherwise would.

It is the general rule that proof of similar accidents is not admissible in evidence. This rule has exceptions, it is true.

In Pomfrey v. The Village of Saratoga Springs, 104 N. Y., 459; 5 St. Rep., 802, a witness who was testifying as to the condition of the sidewalk at the time of the injury which was the subject of the action, was permitted to testify that he had fallen there himself, and it was held to be competent because it tended to show liow he came to know the condition of the sidewalk.

It has been held that such evidence is competent in a class of cases where it is important to show that the defendant had notice, or was warned, of the dangerous character of municipal sidewalks, or of the inadequacy of facilities provided for the passage of passengers to and from trains over the company’s premises. Gillrie v. The City of Lockport, 122 N. Y., 403 ; 33 St. Rep., 636, and cases cited; Brady v. Manhattan Railway Co., 127 N. Y., 46; 37 St. Rep., 340.

But the exceptions to the rule have not been and should not be .so far extended as to permit such testimony in a case where it can Rave no bearing whatever on the issues; otherwise the general rule, which is well grounded, would be overthrown.

In the case before us it did not tend in any degree whatever to the establishment or support of plaintiff’s cause of action to show that the defendant had knowledge of the dangers incident to the -coupling of cars such as those which were the occasion of plaintiff’s injury.

It follows that a reversal of the judgment is required and we need not consider the other questions presented.

The judgment should be reversed.

All concur, except Potter and Vann, JJ., not voting.


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    Romeyn B. Ayres, Resp’t, v. The Village of Hammondsport, App’lt.

      (Court of Appeals, Second Division,

      Filed December 22, 1891.)

    Municipal coepoeations—Negligence—lev sidewalk.
    Upon the trial o£ an action for damages for injuries sustained through plaintiff’s falling upon a sidewalk which sloped at an angle towards the street, and on which ice and snow had accumulated, and fresh ice had formed the night before, followed by a light snow, the court charged the jury that the new ice furnished no ground of negligence on the part of the defendant, but if the slope of the walk was a concurring cause of the fall, without which the accident would not have happened, the defendant was liable. Held, error.
    Appeal from a judgment of the general term of the fifth judicial department, affirming a judgment entered upon a verdict

      James B. Stevens, for app’lt; J. F. Parkhurst, for resp’t.

       Reversing 26 St. Rep., 634.

   Brown, J.

This action was brought to recover for injuries sustained from a fall upon an icy sidewalk.

The accident occurred about ten o’clock on the morning of February 27, 1885, on the south side of Sheather street in front of the St. James Hotel. The sidewalk at that point was constructed -of boards, was about ten feet wide, and extended longitudinally thirty feet, the whole length of the hotel. Next east of the hotel the sidewalk was upon a lower level, and the two walks were connected by three wooden steps.

The hotel building was built upon a line of the street, and was surmounted with aflat roof draining to the rear, having a mansard front without gutter or eavestrough, and the water from that dripped upon the walk, falling at a point from one to two feet outside of the wall of the hotel

The plaintiff based his claim of negligence against the village, first, in permitting the walk to be constructed in an improper and dangerous manner; and, second, in permitting a dangerous accumulation of ice and snow thereon.

The evidence permitted the' jury to find that at the easterly ■end of the walk the slope from the building to the street gutter was seven inches, and that the easterly end of the building having settled had caused the walk to be lower there than at the west ■ end, and these two elements tended to. cause the water that fell upon the walk to flow towards the northeast corner thereof, and there be discharged into the street, and this undue, and as it was claimed, unsafe pitch, was the negligent construction complained of.

That between February 10th and the day of the accident ice and snow had accumulated upon this walk, ranging in depth from six inches, where the drip from the eaves fell, to an inch at the ■outer line of the walk, and that in the angle of the steps referred to ice had accumulated two or three inches thick. There was no ridge under the drip of the eaves of the building, but from the thickest part of the ice at that point there was a gradual slope to the outer edge of the walk. This condition of affairs was known to the president of the village and other officers thereof.

The beginning of this formation of ice was in a heavy storm of rain, followed by extreme cold, on the 10th of February.

The plaintiff testified that it rained hard on February 9th, and "that the temperature" fell to twenty degrees below zero on the morning of the 10th; that the streets and roads were very icy and it was an extraordinary time. From that day until the day be.fore the accident the temperature remained below freezing, with "the exception of two or three occasions in the middle of the day, and frequently fell below zero. There were one or two snow falls, one at least quite heavy, and once or twice it rained slightly.

It appeared from the evidence offered by the defendant that on -the day preceding the accident it thawed a little and in the evening it rained. This was followed by sudden and severe freezing, the temperature falling to zero, and there was a slight fall of snow early on the morning of the 27th. This rain and freezing caused .a new formation of ice.

As to the circumstances attending the plaintiff’s fall, it appeared that he was walking from the west toward the east, and he testified that when he was two-thirds of the way across the platform his foot slipped and he went down, then he raised himself up with, his hands. Again, he testified that when he slipped he was on '.the last plank of the walk at the top of the steps.

On cross-examination he testified: “ I walked about two-thirds of the way across before my foot slipped; I looked down at the walk and stepped to one side. All that I could see of the walk was what my feet covered when I slipped; I proceeded then to the last plank on the Richard’s Hotel walk, then both my feet went out from under me.”

The evidence does not make it clear whether the plaintiff fell twice, once two-thirds of the way across the platform and again on the last plank, or whether he regained his balance after the first slip and fell at the top of the steps. But it is plain from his evidence that the ice in the angle of the steps had nothing to do-with the accident, and we may, therefore, dismiss that feature of. the case from our consideration.

The court, after denying over the defendant’s exception a motion to dismiss the complaint made upon all the evidence, charged the jury that they might find negligence on the part of the defendant in permitting the walk to be constructed with an unsafe slope or pitch toward the street and in permitting the ice and snow to accumulate thereon, and for the purposes of this appeal wo assume that the evidence justified the submission of those two-questions to the jury.

The court instructed the jury to determine whether there was rain on the night of the 26th and a new formation of ice on the-morning of the 27th, and charged them that new ice thus recently formed could not be made the basis of a charge of negligence against the defendant, and for a fall thereon it was not liable.

It then instructed the jury as follows : “Although the defendant may not have been responsible for the condition of the ice-upon that walk, or responsible for any injury resulting from the-existence of ice upon that walk, yet if the negligence of the defendant in permitting the construction of the walk in the form in which it was constructed, or in permitting it to remain as constructed, concurred with the ice so formed upon the walk in producing the injury, the defendant is responsible. * * * To> find that, you must find that this accident "would not have occurred but for this construction. But if you find that the defective construction of that walk concurred with the thin ice to produce the result, if the result could not have been caused without defective construction, then the defendant is responsible.”

I think the evidence as to the rain on the night of the 26th, and the new formation of ice on the morning of the 27th, was substantially undisputed, and, if it was, it was error for the court to have submitted that question to the jury ; but whether that was so or not, the exception to the charge just quoted was well taken, and, as the judgment must be reversed, we may well leave the-question as to the existence of the new ice to rest upon the evidence that will be produced upon a re trial.

If there was no dispute as to the new ice, the motion to dismiss-the complaint should have been granted, but, assuming that to have been in controversy, it was permissible under the judge’s charge for the jury to have found that the plaintiff fell upon new ice formed on the morning of the 27th, and to have placed their verdict on the fact that the slope of the walk was a concurring cause of the accident, without which it would not have happened, and in this view of the case it is not distinguishable in its essential features from Taylor v. The City of Yonkers, 105 N. Y., 202; 7 St. Rep., 332.

In that case, as this, the plaintiff fell upon new ice recently formed over an old accumulation and upon a sidewalk having through the negligence of the defendant a slope from its inner to its outer edge of eight inches, and for that reason assumed to be in a dangerous condition.

There, as here, the jury were instructed that the new ice furnished no ground of negligence on the part of the defendant, but if the slope of the walk was a concurring cause of the fall, without which the accident would not have happened, the defendant was liable.

But this court reversed the judgment in the case cited on the •ground that the facts did not permit the jury to find the slope of the walk to have been a concurrent cause of the fall, and upon "that question the cited case and the case at bar are precisely alike. In each case it appeared that the plaintiff fell upon new ice lying mpon a slope.

To infer from that fact alone that he would not have fallen if "the new ice had spread over a level, and did fall because of the slight pitch of the walk, was said in the case cited to be “ mere guess and speculation.” We are compelled to the same conclusion, and nothing need be added to the reasons given in the Taylor case.

The exception considered was well taken and the judgment must be reversed and a new trial granted.

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


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    Peter C. Anthony, App’lt, v. Leopold Wise et al., Resp’ts.

      (Court of Appeals, Second Division,

      Filed December 22, 1891.)

    Estoppel.
    A claimant who has invested another with the apparent sole title to his claim, and upon an action concerning it has sworn that the assignment was in good faith, is estopped by his own testimony from afterwards denying that the claim was the absolute property of his assignee.
    Appeal from a judgment of the general term of the supreme ■court, first department, affirming a judgment entered upon a decision on a trial at the New York special term.

      A. J. Skinner, for app’lt ; J. H. V. Arnold, for resp’ts.

       Affirming 21 St. Rep., 328.

   Haight, J.

The plaintiff was a resident of New Jersey and ■held a disputed claim for $500 against the defendants, Leopold Wise and Charles Wise. This claim he assigned to the defendant, John Grillen, who brought suit thereon in the city court of New York and recovered judgment. An appeal was taken tithe general term of that court, where there was an affirmance and •an additional judgment for costs. A further appeal was then taken to the court of common pleas, and whilst such appeal was pending, Gillen, in consideration of the sum of twenty-five dollars, assigned and transferred the judgments to the defendant,, Marcus Wise, who purchased the same for and on behalf of the defendants, Leopold and Charles Wise, and at their request, but subject, however, to attorneys’ liens for costs amounting to about. $200.

The plaintiff herein, claiming to be the owner of the judgments, brings this action to have the conveyance by Gillen to Marcus Wise adjudged fraudulent, and that he be compelled to reassign the judgments to the plaintiff.

The assignment of the claim by the plaintiff to Gillen was in. consideration of the payment of one dollar, which payment was-waived. The good faith of this transfer was questioned upon the trial of the Gillen action, and the plaintiff then testified that he-had assigned the claim to Gillen bona fide and absolutely.

Upon the trial of' this action he admitted that he so testified upon the trial of the former action, and further stated that he understood, in case he brought the action in his own name, that he would have to give security for costs; that he did not like to-ask any one to become bondsman for him, and that that was the-reason he made the assignment; that he considered himself good;. that he was informed and believed that Gillen was insolvent and worthless; that he thought that if Gillen failed to recover judgment upon the claim, and a judgment for costs should go against, him, not a dollar of it could be collected.

Whatever equities may exist as between the plaintiff and Gillen we quite agree with the learned general term that the-plaintiff, by his own testimony, is estopped from denying that the-claim was the absolute property of Gillen.

It is claimed, however, that after the trial and after the jury-had rendered a verdict that then the plaintiff repurchased the claim from Gillen, paying him fifteen dollars therefor. The plaintiff so testifies, and that upon the payment of the money Gillen “said that the claim was mine. I could have it He said he; would make an assignment any time I asked it”

Subsequently, however, when an assignment of the judgments; was presented to Gillen to be executed he refused to sign the same.

There is evidence that corroborates the plaintiff to some extent, but it is sharply controverted by the testimony of Gillen. Whilst he admits that he received on one occasion fifteen dollars, and on another occasion one dollar, he denies that there was any conversation after the recovery of the judgment or after the jury came-in with the verdict, in which he sold or agreed to assign the claim, or the judgment to the plaintiff.

Upon this conflict m the testimony the trial court has found, that the allegation of the plaintiff to the effect that he was the-owner of the judgments was not sustained by the evidence, and refused to find that there was a paroi assignment of the judgments.

This conclusion has been approved by the general term, and such finding must in this court be regarded as final.

If the plaintiff was neither the legal nor equitable owner of the judgments in question, he is not in a position to maintain the action. It will not, therefore, be necessary to consider the other questions discussed by the appellant

The judgment should be affirmed, with costs.

All concur.


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    Pell Thompson et al., Resp’ts, v. The Manhattan Railway Co. et al., App’lts.

      (Court of Appeals, Second Division,

      Filed December 22, 1891.)

    Railroad—Elevated—Trespass—Action by remainderman.
    A remainderman can maintain an action to restrain an elevated railroad from the maintenance and operation of its road permanently through a street in front of the premises in which he has an interest.
    Appeal from a judgment of the general term of the court of ■common pleas of the city and county of New York, affirming a judgment entered upon a decision on a trial at special term.

      Brainard Tolles, for app’lts: John A. Weeks, Jr., for resp’ts.

       Affirming 29 St. Rep., 720.

   Haight, J.

This action was brought for an injunction perpetually restraining the defendants from constructing, maintaining or operating an elevated railroad through Pearl street in the city of New York adjoining or in front of the plaintiffs’ premises, and for the damages alleged to have been sustained by reason of such ■construction and operation.

In the year 1870 the mother of the plaintiffs died intestate seized of the premises in question. She left her surviving the plaintiffs, and William W. Thompson, her husband, who, as tenant by curtesy, ever since has been in the possession thereof, receiving the rents, issues and profits. Upon the death of their mother the plaintiffs became vested with an estate in remainder, and as such bring this action for an injunction, upon the theory that the maintenance and operation of the railroad is a damage to their inheritance.

The defendants had never obtained from the plaintiffs, either by purchase or proceedings to condemn, the right to construct and operate their railroad. The structure must, therefore, as to them, be regarded as illegal and a continuing trespass upon their rights from the time the road was built Story v. The N. Y. E. R. Co., 90 N. Y., 122 ; Uline v N. Y. C. & H. R. R. R. Co., 101 id., 98.

In the case of Pappenheim v. The Metropolitan El. R. Co., 128 N. Y., 436; 40 St. Rep., 445, Peckham, J., in delivering the opinion of the court, says: “ As the structure is illegal, and as it constitutes, while it exists, a continuing trespass, the railroad company is under a legal obligation to remove it, and the law will presume that the company will do so. In an action at law the owner of the property interfered with or trespassed upon cannot recover damages to his premises based upon the assumption that such trespass is to be permanent. He can recover only the damages which he has sustained up to the commencement of the-action. The judgment entered for the damages sustained does not operate as a purchase of the right to continue the trespass. But the owner may resort to equity for the purpose of enjoining the continuance of the trespass and to thus prevent a multiplicity of actions at law to recover damages; and in such an action the court may determine the amount of damage which the owner would sustain if the trespass were permanently continued and it may provide that, upon payment of that sum, the plaintiff shall give a deed, or convey the right to the defendant, and it will refuse an injunction when the defendant is willing to pay upon the receipt of the conveyance.”

This action was brought in equity and for an injunction, and the question as to the permanency of the elevated road in this case is disposed - of by the parties. The defendants, in their answer, allege: That the, said railway was constructed according to law and with the greatest care and skill, and that the said structure, maintenance and operation are permanent.” The plaintiffs, as part of their affirmative case, read this allegation of the-defendants in evidence, and the trial court found as a fact that “ The defendants proclaim their intention of continuing to maintain the said structure and to operate the said railroad substantially as they have been maintained and operated in the past,. and that said structure and its operation is permanent.’’

The question is therefore presented as to whether the plaintiffs, as remaindermen can maintain an action to restrain the defendants from the maintenance and operation of their road permanently through Pearl street in front of the plaintiffs’ premises.

Section 1665 of the Code of Civil Procedure provides that: “A. person, seized of an estate in remainder or reversion, may maintain an action founded upon an' injury done to the inheritance, notwithstanding an intervening estate for life or for years.”

The statute provided that: “ A person seized of an estate in remainder or reversion may maintain an action of waste or trespass for an injury done to the inheritance, notwithstanding an intervening estate for life or years.” 1 R. S., 750, § 8.

Under the Code the words “of waste or trespass for” are-omitted, and the words founded upon,” are substituted in them-place. The words omitted as used in the statute indicated the-nature of the action that might be maintained. The leaving off them out of the Code would seem to indicate an intention, not to restrict the party injured to such actions, but to give him the right to maintain an action founded upon an injury done to his „inheritance. That an action for an injunction may be maintained for such an injury appears to be authorized by § 1681 of the same title, for it provides that: “ If during the pendency of an action specified in this title the defendant commits waste upon or does any other damage to the property in controversy, the court or a judge thereof may, upon the application of the plaintiff and due proof of the facts by affidavit, grant without notice or security an order restraining him from the commission of any further waste-upon or damage to the property. Disobedience to such an order may be punished as a contempt of court. This section does not affect the plaintiff’s right to a permanent or temporary injunction in such an action.”

It will be observed that the right to an injunction is not limited to wastes, but covers “ any other damage to the property.”

In the Story case it was held that the owners of premises abutting upon a public street acquire an easement in the bed of the street for ingress and egress to and from their premises, and also for the free and uninterrupted passage and circulation of light and air, through and over the same for the benefit of their property; that the ownership of such easement is an interest in real estate constituting property within the meaning of the term as used in the constitution of the state, and requires compensation to be made therefor before it can lawfully be taken from its owner for public use; that the right thus secured was an incorporeal hereditament and became an appurtenant to the lot forming an integral part of the estate in it. From the moment it attached the lot became the dominant and the street the servient tenement See also Lahr case, 104 N. Y., 268; 4 St. Rep., 340.

In the case of Kernochan v. The N. Y. El. R. Co., 128 N. Y., 559; 41 St. Rep., 110, decided December 1, 1891, Andrews, J., in delivering the opinion of the court, says that: “The invasion of this incorporeal right by the structure of the elevated road is the gravamen of this and similar actions and such an injury, although not a trespass upon the land, has throughout the course of common law been remediable by an action for damages technically known as an action for trespass on the case.”

In that case it was held that the action could be maintained by the owner during the period in which the premises were in the occupation of a tenant under a lease for a term of years; and that the construction and operation of the road before any consummated right has been acquired by the defendants, whereby the owner of abutting propery is deprived of the full enjoyment of his property, constitutes an injury to the inheritance.

We thus have the express provisions of the Code, giving the right to a remainder-man to maintain an action founded upon an injury to t^ie inheritance. We also have the adjudication in the Kernochan case, that such an injury as is complained of in this case constitutes an injury to the inheritance. It consequently follows, that the action can be maintained.

In view of the fact that the authorities have been collated and considered in the Kernochan case, further discussion of the question is not deemed necessary.

Mo other question was presented for consideration.

The judgment should be affirmed, with costs

All concur.


author: Bradley, J.

text:
    Jefferson D. Bernstein, Resp’t, v. Henry L. Meech et al., App’lts.

      (Court of Appeals, Second Division,

      Filed December 22, 1891.)

    1. Contract—Theatrical—Breach or.
    Defendants contracted with plaintiff to furnish an opera house for four-performances, and the latter agreed to furnish the services of his comedy company during that time and to take fifty per cent of the gross receipts. Subsequently plaintiff inclosed a contract for defendants to sign giving him sixty per cent, saying he could not think of playing for less. They returned the contract unsigned, saying “we have a contract signed by you and do not need any other.” Still later plaintiff wrote defendants to advertise freely in regard to the performances, to which the latter replied that they had supposed from plaintiff’s last letter that his company was not coming, and they arranged for another company to play at their house on, the days named. Held, that the defendants’ first letter tended to show an election to keep the contract in force and plaintiff was justified in so-understanding it, and consequently the contract was kept alive until the time arrived for performance.
    2. Same—Damages.
    " The measure of damages in suen an action is an amount equal to the expenses legitimately and essentially incurred for the purpose of the performance and not the profits which might have been made thereby.
    Appeal from judgment entered upon order of the general term of the supreme court in the fifth judicial department, affirming-judgment entered on a verdict.

      Leroy Andrus and John T. Joyce, for app’lts; Herbert P. Bissell, for resp’t

       Affirming 26 St. Rep., 985.

   Bradley, J.

By contract of date August 4, 1887, between,the parties, the defendants agreed to furnish to the plaintiff the opera house known as the Academy of Music in the city of Buffalo, December 22d, 23rd and 24th for four performances by Jar-beau Comedy Company, and for that purpose the plaintiff agreed to furnish the services of that company during that time, and intake as the consideration fifty per cent of the gross receipts of all sums realized from the performances. When this contract was-executed each of the parties had the right to assume that the-other would observe its stipulations. The performances did not take place; and the reason why they did not the plaiiftiff charges-was attributable to the breach of the contract by the defendants. The purpose of this action was to recover damages as the consequence. The controversy involved the construction of correspondence had between the parties subsequently to the making of the contract. The first of it was a letter from the plaintiff to the-defendants of August 12, Í887, in which he enclosed a written paper for them to sign as a contract to the effect that he should have sixty per cent of the gross receipts of the performances, and he stated in the letter that he could not think of playing for less. When the defendants received this letter it may be they were-permitted to understand that the plaintiff did not intend to have-his company play for the stipulated portion of the. receipts first mentioned, and to treat the contract as rescinded or as still in force for such purpose as to them might be deemed available. The view which was taken by the defendants of the situation was-represented by their letter of date August 13th to the plaintiff, in which they returned the contract unsigned, and said they did so “ for the reason that we have a contract signed by you and do-not need any other for the appearance of Verona Jarbeau and company at our Academy of Music December 22d, 23rd and 24th, 1887.”

By this letter it seems that the defendants did not intend to and did not relinquish any rights which they had under the contract of the 4th of August That agreement then remained in force, and if the plaintiff failed to perform it he would be liable to the defendants for the legitimate consequences of his default. Mo further communication was had between the parties until Movember 17th, when the plaintiff’s agent in his letter from Chicago to the defendants enclosed advertising clippings to them for publication, and added: “Please keep Miss Jarbeau before the public-as much as possible. I want to see her turn them away in your town, and she will if conditions are equal. If you had rather, I will address the newspapers myself.” In that case he requested that the names of newspaper men to address be furnished him. The defendant, who was absent when the letter reached Buffalo, addressed to the agent at Chicago November 28th a letter expressing his surprise, with the remark that he had supposed from the plaintiff’s letter of the 12th of August that his company was not coming to Buffalo, and added, “ We cannot now arrange to play Verona Jarbeau ” the dates before mentioned. This letter was forwarded to Buffalo and did not reach the agent until December 17th or 18th, when he came there to complete the advertising- and make the arrangements preparatory to the performance. And in due time the plaintiff with his company reached Buffalo to perform his contract with the defendants. In the meantime they had arranged with James Brown Potter Company to play at the Academy of Music on those days. And the plaintiff was refused permission for his company to do so. Upon this state of facts the question was presented whether or not the defendants were relieved from the obligation of their contract with the plaintiff. This, in view of the circumstances, was treated by the trial court as a question of fact for the jury, and exception was taken to refusal to direct a verdict for the defendants.

It is urged that the plaintiff’s letter to the defendants must be treated as a refusal to perform and as a breach of the contract on his part which relieved them from its obligation and afforded to the defendants a right of action. It is true that when one of the parties to an executory contract has renounced it the other party to it may act upon the assumption of such a breach before the time for performance arrives. Windmuller v. Pope, 107 N. Y., 674; 12 St. Rep., 292.

But in the present case that proposition is not necessarily applicable, because the conclusion was not required as matter of law that there was a renunciation of the contract by the plaintiff, nor was it so treated by the defendants. Blackburn on Sale, § 744. And whether in view of the understanding of the parties deriva;able from their correspondence the defendants could have acted upon the assumption of a breach by the plaintiff and were justified in so doing was a question presented for consideration at the trial, .and which the defendants requested the court to submit to the jury. The refusal of the court to charge further than it had already charged on the subject was not error, because by the charge before then made to the jury the question in that respect had with ample instructions been fully submitted to them.

But whatever view may have been taken of the right of the defendants to treat the contract for the purposes of its performance as at an end and to act upon that assumption when they received the plaintiff’s letter, they disposed of that question by their letter to him. By this it appeared that the defendants elected to keep the contract in force for the purposes for which it was made. This operated alike upon the rights of both parties, and the plaintiff was justified in so understanding it. In that view the contract was kept alive until the time arrived for performance, and the obligations of the defendants no less than those of the plaintiff for that purpose remained effectual. Johnstone v. Milling, L. R., 16 Q. B. D., 460; Frost v. Knight, L. R., 7 Exch., 111; Zuck v. McClure, 98 Pa. St., 541.

There was no error in the refusal of the court to direct a verdict for the defendants.

The remaining questions have relation to the damages which were the subject of the plaintiff’s recovery. The general rule on the subject would permit him, in case of breach by the defendants, to recover the value of his contract. And that was dependent upon the receipts to be realized from the contemplated performances by the plaintiff’s company. The results which would in that respect have been produced if the company had been permitted to perform the contract were speculative and by no probative means ascertainable.

It is contended on the part of the defendants that recovery could be founded on no other basis, and, therefore, the plaintiff could recover nominal damages only. The value of the contract to the plaintiff was in the profits and in. the amount of them which may have been realized over his expenses attending its performance. Those profits not being susceptible of proof were not the subject of recovery. But by the breach of the contract by the defendants the plaintiff was denied the opportunity which the observance of it could have given him to realize fifty per centum of such receipts as would have been produced by it. His loss also consisted of the expenses by him incurred to prepare and provide for such performance. While the plaintiff was unable to prove the value in profits of his contract, he was properly permitted to recover the amount of such loss as it appeared he had suffered by the defendants’ breach. Griffin v. Colver, 16 N. Y., 489 The evidence warranted the conclusion that the plaintiff through his agent made nrenarat.ions for the performance, of the contract, and that the plaintiff with his troupe appeared at Buffalo prepared and in readiness to do so. The amount of his expenses incurred for the purpose of such performance was proved, and. they were the basis of the recovery. It is unnecessary to refer specifically to the items of those expenses. The jury were upon, the evidence permitted to find that, to the amount of the recovery, they were legitimately incurred for the "purposes of the performance of the contract, and that with a view to such purpose the-plaintiff suffered a loss to that extent. Those expenses may be-deemed to have been fairly within contemplation when the contract was made. It cannot be assumed that any part of this loss, would have been sustained by the plaintiff if he had been permitted to perform his contract. And assuming, as we must here, that, the exclusion of the plaintiff’s company from the use of the opera-house at the time in question was caused by the defendants’ breach of the contract, the plaintiff’s loss equal to the amount of his expenses legitimately and essentially incurred for the purpose of its. performance was the consequence of their default and properly recoverable by him. Driggs v. Dwight, 17 Wend., 71; Giles v. O’Toole, 4 Barb., 261; Taylor v. Bradley, 39 N. Y., 129, 142.

These views lead to the conclusion that none of the exceptions, were well taken, and that the judgment should be affirmed.

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