author: Bischoff, J.

text:
    Theodore Wegener, Appl’t, v. James H. Butler, Resp’t.

      (New York Common Pleas, General Term,

      Filed February 5, 1894.)

    1. Evidence—Contract.
    Where the contrae t refers to drawings and specifications, but_ none are annexed to the contract, resort may be had to extrinsic evidence to identify them.
    2. Same.
    After proper identification, it is error to exclude a paper which purports to be such specifications.
    Appeal from an order of the general term of the city court of New York which reverses a judgment for plaintiff on a verdict in his favor, and grants a new trial.

      Action to recover upon a contract for work, labor and services rendered, and materials furnished, in the construction of a building and for extra work. The answer denied performance of the contract and that any extra work was done with defendant’s consent. It also interposed a counterclaim for loss of rents occasioned by plaintiff’s delay.

      William F. Browne {Denis McMahon, of counsel,) for appl’t; A. Q. Vanderpool, for resp’t.
   Bischoff, J.

Plaintiff in this action sought to recover a balance alleged to be due him for work, labor and services rendered and materials furnished, in the construction of defendant’s building, pursuant to a written contract therefor between the parties, and for extra work upon the same building. Defendant, among other things, denied that plaintiff had completed the work required of him, and that any extra work whatever, other than such as was paid for, had been done at his instance and request. The record shows that plaintiff’s claim for extra work arose in part, as alleged, from the fact that the drawings and specifications submitted to him for the purposes of his estimate of the. cost, preliminary to the making of the contract, called for the construction of a building sixty-five feet and two inches wide; while the building constructed by him under defendant’s direction and that of his architect, was sixty-six feet and four inches in width. The action was tried and resulted in a verdict for plaintiff for an aggregate amount upon both causes of action, from the judgment whereon defendant appealed to the general term of the court below, where it was reversed for rulings on the trial which were prejudicial to defendant and are hereinafter noticed, and a new trial granted. Instead of availing himself of tile new trial plaintiff appeals from the order to this court having given the statutory stipulation for judgment absolute against him in the event of affirmance.

The contract for the construction of the building required plaintiff to do the work therein referred to “ agreeably to the drawings and specifications made by Frederick Lohse, architect, and signed by the parties and hereunto annexed.” Ro drawings or specifications, however, signed by the parties, or otherwise, were annexed to the contract, and thus it became necessary to inquire concerning the drawings and specifications intended, for which purpose resort had to be taken to extrinsic evidence, St. John v. Potter, 46 St. Rep. 883. Browne on Parol Ev. 125. In this behalf plaintiff was allowed to give in evidence a paper purporting to be specifications relating to the building mentioned in the contract, which was unsigned, but which plaintiff maintained was the paper submitted to him, and from which he estimated the cost of construction at the sum named in the contract subsequently entered into between him and defendant and which the latter thereby agreed to pay. Thereafter defendant’s counsel offered in evidence another paper also, purporting to be specifications relating to the same building, also' unsigned, which defendant had previously testified to as being the same paper which was submitted by him to plaintiff for the purpose of the estimate, and from which plaintiff’s estimate was made before the contract was entered into. To the introduction of this last mentioned paper plaintiff’s counsel objected and it was thereupon excluded ununder exception by defendant. A comparison of the two papers demonstrates that the paper excluded, if found to be the specifications intended by the parties to be signed and annexed to the contract, would require plaintiff to comply with the provisions therein for “ Timber,” “Roof Floor,” “Tinning,” “Window Frames and Sashes,” “ Sashes,” “ Doors,” and “ Painting,” all of which are omitted from the paper admitted in evidence. The exclusion of the the paper offered for defendant in effect prevented him from showing what the contract was, and that it was not performed by plaintiff, as claimed by the answer. That it was material error therefore to exclude the paper seems to be a proposition so clearly correct as not to admit of dispute.

The order appealed from should be affirmed and judgment absolute for defendant entered upon plaintiff’s stipulation, with costs of this appeal, and of the court below.


source: Caselaw Access Project

author: Bookstaver, P. J.,

license: Public Domain

text:
    Bernard Campbell, Resp’t, v Juan Y. Jimenes et al., App’lts.

      (New York Common Pleas, General Term,

      Filed February 5, 1894.)

    1. Evidence—Parol.
    Where the intention of the parties to a written contract is intelligible upon the face of the instrument, extrinsic proof of its meaning is inadmissable, and its construction is for the court alone.
    3. Same.
    In an action for the enforcement of a contract, it is incompetent for a party to give evidence tending to contradict and make it an entirely different contract from the one sued on.
    3. Contract—Construction.
    A term in a contract is not indefinite or uncertain, where it can be made certain by the performance of another clause of the contract.
    4. Same.
    Either party may put an end to the contract at any time, if the term is indefinite.
    Appeal from a judgment of the city court affirming a judgment of that court entered on the verdict of a jury, and from an order deny a new trial.
    Tracy, Boardman & Platt, for app’lts; William F. Randel, for resp't.
   Bookstaver, P. J.,

This is the second appeal to this court in this case. After hearing the very careful argument of counsel on both sides and considering their briefs, we see no reason whatever to change our views of the law laid down upon the former appeal, Campbell v. Jimenes, 52 St. Rep., 495, which was to the effect that where the intention of the parties to a written contract is intelligible upon the face of the instrument, extrinsic proof of its meaning is inadmissible, and its construction is for the court, alone; but where the terms of a contract are so obscure or ambi•uous as not to be understood without the aid of adventitious light, then evidence not only of the surrounding circumstances but of the acts and conversations of the parties is competent to illustrate their intention and upon such evidence the meaning of the instrument is for the determination of the jury. But in the light of the last argument, and upon a more critical examination of the contract itself, we are of the opinion that our former determination as to the obscurity or ambiguity of the contract was wrong. It is as follows: “ I, Bernard J. Campbell, chief engineer, hereby ■agree to render myself to the orders of Captain Compton for services on the steamer he may assign and tor services in the West Indies, not to extend six months, receiving wages at the .rate of $250, American gold or its equivalent, per month, one month to be paid in advance on leaving, and free passage out and home, Hew York, 8th April, 1889, Jimenes, Haustedt & Co.” We do not see how the words “ not to extend six months,” can by any mental proess be held to mean for a period of six months. When used with reference to time, the verb “to extend ” is synonymous with “ to continue or stretch over," and is a period of time which is not to continue six months. As we said on the former appeal, the word “ extend,” as here used, was equivalent to the word “ exceed,” and by the most liberal interpretation of it in plaintiff’s favor, it is an indefinite period which may amount to six months but cannot in any event exceed it. Either party may put an end to the contract at any time if the term is indefinite, as if A employs B to serve him at a certain sum a month for a term not exceeding three years; Woods M. & S. 2nd ed. sec. 133. And where the hiring is for a period not ■exceeding a named term, its duration is indefinite; Harper v. Hassard, 113 Mass. 187; Peacock v. Cummings, 46 Penn. St. 434; Coffin v. Landis, 46 Penn. St. 426. For the support of the judgment therefore it is indispensable that the contract on which it rests should stipulate for a service of six months, which clearly is not the case by any rule of interpretation of this contract.

So we think in reading the whole contract together, the word “ steamer ” is neither indefinite nor uncertain. This word is defined in all dictionaries, to be “ a vessel propelled by steam ” no matter whether it is a passenger, freight, or war vessel. The only possible indefiniteness or uncertainty arises from the fact that no particular steamer is named or designated. But the plaintiff agreed to render himself amenable to the orders of Captain Compton “ for service on steamer he may assign,” and when the assignment was made this provision became clear and definite, and no maxim of 'law is better known than Id cerium est quod •cerium reddipotest; Broom's Maxims, 3 ed. 556 ; 2 Bouv. L. D. 129.

It must be borne in mind that this action is not for the reformatioh of the contract which respondent now claims is indefinite and uncertain and does not contain the whole contract or express the intention of the parties, but for its enforcement and thereby the plaintiff reaffirms the contract in all its parts, and it was incompetent for him to give evidence tending to elucidate the construction of the contract, much less as he did in this case, to seek to contradict it and make it an entirely different contract from the one sued on.

We think the court below should have construed the contract as indicated in the opinion above. The judgment must therefore be reversed and a new trial ordered, with costs to the appellant.


author: Daly, C. J.

text:
    Julia Rattagliata, as Administratrix of Thomas Moglia, Deceased, App’lt, v. William L. Hubbell, as Treasurer of Adams Express Company, Resp’t.

      (New York Common Pleas, General Term,

      Filed February 5, 1894.)

    1. Negligence—Degree of Care.
    The owner of a vehicle is bound to use such care only as a person of ordinary prudence may be' expected to exercise under the same circumstances.
    2. Same—Contributory.
    Negligence on the part of the person injured, when a proximate cause of the injury, is contributory and fatal to recovery.
    Appeal by plaintiff from a judgment in favor of defendant, entered upon the verdict of a jury, 'and from an order denying plaintiff’s motion for a new trial. The appeal is argued upon a bill of exceptions.
    The action is to recover damages for the death of Thomas Moglia, seventeen years of age, who was run over and killed by an express wagon of defendant in Water street, on April 80th, 1888. The complaint charges negligence on the part of the driver of the wagon in driving at an excessive rate of speed and in governing and directing the wagon and horses, and averred that the plaintiff was free from contributory negligence. The answer denied the allegations of the complaint. The jury found a verdict for defendant.

      Whitehead <£ Lyon (II M. Whitehead of counsel) for app’lt; Seward, Da Gosta & Guthrie (V. Morawetz and Wm. D. Guthrie of counsel) for resp’t.
   Daly, C. J.

The testimony shows that the boy ran across the street in front of the approaching wagon, which was coming at an unusual rate of speed, and that he slipped and fell, and was run over. The evidence was conflicting as to how far the horses were from him when he fell, there being some evidence that he fell twenty-five feet in front of them, and other evidence that he was just close to the pole of the wagon near the horses heads when he fell, and some evidence tending to show that the wagon might have been stopped before passing over him, and some evidence tending to establish the contrary; and there was evidence tending to show that the driver of the wagon, after he first saw deceased, might have avoided the accident, and there was evidence tending to show the contrary.

Upon this conflict it was a question for the jury whether the driver of the wagon was negligent, and if so whether his negligence was the sole cause of the injury, or whether the deceased was negligent in crossing in front of the wagon while it was approaching at an unusual rate- of speed, and if so, whether his negligence was a proximate cause of the injury; and we cannot disturb the verdict unless it is affected by a misdirection upon the law or by error in the ruling of the court upon the admission of evidence.

There having been in course of the examination of some of the witnesses inquiry as to the use of brakes upon heavy wagons and of curb-bits upon the horses, the court charged the jury that there is no law which requires express wagons to have brakes or requires drivers to use curb bits on horses, and that the general rule is that vehicles shall be used that are safe for ordinary purposes, such as menz of common sense habitually use; and such bits shall be used as men of common sense in their private affairs usually have; and that there is no greater obligation upon an express company than upon men engaged in any other business. The defendant then asked the court to charge that the company was bound to use every appliance which is generally known and in use for the safety of passage of persons walking upon the street. The court responded: “ I will say that they are bound to use such appliances as are commonly used by men of common judgment and common prudence in the city of New York.” The defendant excepted as far as the request was not “charged.

There was no evidence that brakes and curb bits were -generally used in connection with such vehicles as were operated by defendant, nor generally with vehicles in city streets; but, as they are well known appliances, appellant claims that if defendants were not negligent as matter of law in not adopting them, the question should have been submitted to the jury. The judge did not excludé from the consideration of the jury the question of the use of the appliances named, but left it to the jury to say if they were commonly used by men of common judgment and common prudence in the city of New York. The question of brakes and curb bits was, therefore, submitted to the jury under a proper instruction as to law, for defendants were not bound to do more than common prudence required. The obligation of one using the streets of a city, whetherto walk of drive, is the same, viz : the exercise of ordinary care; such care as a person of ordinary prudence would exercise under the circumstances. The owner of a vehicle is not bound to furnish appliances which will render an accident impossible or to use the highest degree of care to make it safe, but only such care as a person of ordinary prudence may be expected to exercise under the same circumstances. Unger v. 42nd St. R. R. Co., 51 N. Y. 487. Such even is the limit of obligation of a steam railroad company towards its passengers with-respect to its platform structure, Lafflin v. Buffalo & S. W. R. Co., 106 N. Y. 136; 8 St. Rep. 596; and of a steamboat company with respect to a gangway rail Dougan v. Champlain T. Co. 56 N. Y. 1; Loftus v. Union Ferry Co. 84 N. Y. 455 ; and the owners of a mine with respect to a car used in ascending and descending the mine, Burke v. Witherbee, 96 N. Y., 562; and of carriers of passengers with regard to appliances within the cars, i. e., racks to hold parcels. Morris v. N. Y. C & H. R. R. Co. 106 N. Y. 678; 4 St. Rep. 204. In the case last cited the rule of obligation is declared to be reasonable care to be measured by the circumstances surrounding each case. And it has been held •not to be negligence to use a heavy coal wagon which had no stop bar or appliance to prevent its backing down hill. Newcomb v. Van Zile, 34 Hun, 275. It is manifest, therefore, that defendants were not required to use all appliances generally known and in use, but only such as reasonable care required, and this question was submitted to the jury. In the case of Mentz v. Second Ave. R. R. Co. 3 Abb. Ct. App. Dec. 274, where the plaintiff had fallen upon the track of a city railroad and was run over by the car, Chief Justice Hunt observed: “Ordinary care is' not sufficient, •under such circumstances. If a human being is seen, by the engineer or by the driver, .lying upon a railroad track, it is his duty to exercise the very highest care and to make the greatest effort to avoid his destruction. That ordinary care and reasonable diligence which would suffice to protect a bale of goods is far below the standard required on such an occasion. This doctrine is laid down in all the cases as to locomotive trains, and the principle is the same as to horse cars. The care and attention must be in proportion to the damages or injury. The very best means of protection must be furnished by the company to their agents and their agents must use them in the most skillful and careful manner.” These remarks must be considered with regard to the facts of the particular case, where the driver, engaged "in conversation With the passengers, with his back towards the horses, did not see the child which had fallen on the track. There was" no question in the case of the use of the particular appliances or the want of them on the car, and it cannot be questioned that the driver in that case failed to exercise even ordinary care. The- case does not conflict with the current of decisions.

The court having left the question of deceased’s contributory negligence to the jury, the plaintiff asked an instruction “ that although the plaintiff may have been negligent at the time he was running across the street, if that was the proximate cause of his injury, and the defendant could have avoided it with due care, the plaintiff is entitled to recover ”; the judge said “ that would be a correct statement of a proposition of law if the negligence of the deceased were not proximate. I don’t see how is applies to this case. I do not charge it.” An act may be a proximate cause of the injury, yet if it be not negligent, it will not bar a recovery. Putnam v. N. Y. C. & H. R. R. R. Co., 47 Hun, 441; 14 St. Rep., 329; but the request called for an instruction which conceded the negligence of the plaintiff as a proximate cause of his injury, and a recovery in such a case would be directly against principle and authority. Negligence on the part of the person injured when a proximate cause of the injury is contributory and fatal to recovery. 4 Am. and Eng. Ency. of Law, Title, “ Contributory Negligence.”

Error is claimed in submitting any question as to contributory-negligence to the jury. Nk> exception was taken to the charge in that respect; but it is urged that as the plaintiff had ample time to cross the street but slipped and fell in front of the horses, it was the duty of the judge to charge the jury that deceased wras not guilty of any contributory negligence. No such request was made, but the court did expressly instruct the jury upon that point, saying, in speaking of • the testimony of one of the witnesses, “ he says that the boy crossed from tjie westerly side to the easterly side, and that he was coming back to the westerly side at the time this vehicle was approaching; then he says in consequence of the slipperiness of the pavement the boy fell, and before he could rise and get away, this vehicle came upon him at a rapid pace. If that statement be true, it would appear that the boy was the victim of misfortune; that he fell, which any person is likely to do; and there could not be any negligence attributed to him on his part, if that were true.” This instruction was as favorable as plaintiff could ask. There was testimony that deceased ran almost directly under the nose of the horses and that he turned, or threw himself back, to save himself and then slipped and fell, evidence which justified a finding that he attempted to cross when there was not time to do so in safety. Upon the evidence the jury might have found that the injury was due to the negligence of the deceased or was the result of unavoidable accident.

Judgment affirmed, with costs.


text:
    Henry G. Bicknell, Resp’t, v. Gilbert M. Spier, Jr., as Receiver of the Vertical Tube Boiler Company, Substituted as Defendant in the Place of said Company, App’lt.

      (New York Common Pleas, General Term,

      Filed February 5, 1894.)

    1. Accord and satisfaction—Parol Agreement.
    A substituted parol agreement, whether made before or after breach of the covenant in the original agreement, is a good accord and satisfaction of the covenant.
    3. Appeal—Error cured.
    An omission to plead an agreement is cured, if evidence thereof is received without valid objection.
    3. Same.
    Any defect in the complaint, which could have been obviated by amendment, is waived by proceeding to trial without objection.
    4. Evidence—Judgment.
    A judgment is neither presumptive ndr conclusive evidence for or against the defendant in respect to any liability, not among the issues litigated or proper to be litigated.
    Appeal from a judgment of the general term of the city court of New York, which affirms a judgment for plaintiff rendered in an action tried by the court without a jury.
    Action to recover moneys alleged to have been loaned to the defendant company by plaintiff’s assignor, and for services rendered to it by him as its manager.

      Bullard & Shannon (É. F. Bullard, of counsel) for resp’t; J. G O' Conor, for app’lt.
   Bischoff, J.

On April 4th, 1890, the Vertical Tube Boiler Company entered into an agreement in writing with one Clinton B. Jackson, under which, in substance, the company was to create or raise a treasury fund of fifteen thousand dollars in cash, which was to be used by it as a permanent working capital for the purposes of its business, and towards that end Jackson agreed to lend it three thousand, seven hundred and fifty dollars, to be paid at onceJackson was to be employed as manager of the company’s business for the period of six months, commencing April 7th, 1890, and to receive á monthly salary of three hundred dollars, besides which the company promised to pay him one-fourth of the net profits earned at the end of said period;, if at the end of the first six months of his employment, Jackson’s services as manager had proved satisfactory to the company, and the latter elected to continue his employment, then the company was to raise additional working capital and to employ Jackson as such manager for three years at an annual salary of five thousand dollars, the duration of the last mentioned employment, however, to be dependent upon the company’s continued financial success; if the company’s financial success should continue within the period of any other agreement with Jackson, the latter was also to receive twenty-five thousand dollars of the former’s capital stock, to be valued at par, as soon as the net profits of the business were equal to the company’s floating indebtedness, which at the time of the agreement, was estimated at thirty-five thousand dollars; no dividends were to be paid to stockholders until the floating indebtedness was paid; and the company reserved the right to charge to its profit and loss account all such debts due, or to grow due, to it as were not paid within three months after the time they were severally contracted.

Under this agreement, Jackson entered upon his employment as manager. Upon the expiration of the first six months, the company elected to continue the employment, and it was so continued for one and one half months, or until November 24th, 1890. For each of the first six months, Jackson. received his salary of three hundred dollars. For the last one and one-half months, he claimed to be entitled to a salary at the rate of five thousand dollars per annum, or four hundred and sixteen dollars and sixty-seven cents per month, but received only at the rate of three hundred dollars per month. At the end of said seven months, the company abandoned its business. The sum of three thousand, seven hundred and fifty dollars, which Jackson had agreed to advance to the company as a loan, was paid by him and accepted by the company in his two promissory notes, one for fifteen hundred dollars and interest, on which fifteen dollars interest had accrued at the time, and the other for two thousand two hundred and fifty dollars. The first mentioned note was paid at maturity, but the other was unpaid and past due at the time of the commencement of this action.

Jackson assigned whatever claims he had against the company to the plaintiE, and the latter brought this action to recover the süm advanced by Jackson on account of the loan agreed to be made by him, together with any arrears due Jackson for salary. The action was originally commenced against the company, but upon the appointment of a receiver of its affairs, the latter was substituted as defendant. On the trial the facts in evidence were shown as above narrated, and the defenses were that Jackson, by omitting to pay the note for two thousand two hundred and fifty dollars, had not performed the agreement on his part; that he had been paid in full for all salary which had accrued to him, and that the company was entitled to recover of him, three hundred and twenty-five dollars and thirty-eight cents, received and had by Jackson to the company’s use. The trial justice held that plaintiff was entitled to recover the sum of fifteen hundred and fifteen dollars advanced by Jackson as part of his agreed loan, with interest to October 7th, 1890, which, together, amounted to fifteen hundred and sixty dollars and forty-five cents; that Jackson was entitled for the last one and one-half months of his employment to a salary of four hundred and sixteen dollars and sixty-seven cents per month, making a total of six hundred and twenty-four dollars and ninety-nine cents for that period upon which he had been paid four hundred and fifty dollars, leaving a balance due, amounting to one hundred and seventy-four dollars and ninety-nine cents; and that defendant was entitled to a credit-of three hundred and twenty-five dollars and thirty-eight cents for moneys received by Jackson to the use of the company. Accordingly, judgment was rendered for plaintiff against defendant for the sum of fourteen hundred and ten dollars and six cents, principal, which with interest aggregated fifteen hundred and five dollars and fifteen cents. Upon appeal to the general term of the court below, the judgment was affirmed, and from the the judgment of affirmance, defendant has appealed to this court.

It is urged for reversal of the judgment that Jackson’s agreement to advance the sum of thirty seven hundred and fifty dollars to the company, was tantamount to a contribution towards its capital, and that as the capital constituted a fund for the benefit of all the creditors of the company, neither Jackson, nor his assignee, could recover in this action any part of the sum so ad" vanced by the former. It is unnecessary'to discuss the question, however, since upon a careful reading of the agreement, we cannot sustain the construction for which appellant- contends. Hot Jackson, bnt the Vertical Tube Boiler Company, was to raise the required fifteen thousand dollars as working capital. The former agreed to aid it by a loan of three thousand, seven hundred and fifty dollars. This is the clear import of the language of the agreement. It was competent for the company to borrow money, Cook on Stock etc., sec. 685; Am. and Eng. Ency. of Law, Vol. 4, P. 222 : Barnes v. Ontario Bank, 19 N. Y. 152; Smith v. Law, 21 N. Y. 296; Nelson v. Eaton, 26 N. Y. 410; Kent v. Quicksilver M. Co., 78 N. Y. 159, 177; Coats v. Donnell, 94 N. Y. 168; Hope Mut. L. Ins. Co. v. Perkins, 38 N. Y. 404. To borrow money implies a promise to repay it. There is nothing in the agreement which 'may, remotely even, be construed to the effect that Jackson's loan, or the company’s floating indebtedness, conceding the loan to have been included as a part of it, was to be paid only out of the net profits. Jackson was not to receive the capital stock promised him, until the company’s net profits should be equal in amount to its floating indebtedness; but that is all. In any event, however, it is clear that the company's abandonment of its business prevented repayment out of its profits.

Next, appellant urges that neither Jackson, nor his assignee, was entitled to recover the sum actually advanced on account of the loan, because acceptance of a debtor’s note for a precedent debt operates only to extend the time of payment, but does not constitute payment of the debt. Jagger Iron Co. v. Walker, 76 N. Y. 521, 524; Feldman v. Beier, 78 N. Y. 293; and that as one of Jackson’s notes remained unpaid, he did not comply with the condition precedent to his right to recover against the company, of performance on his part. The proposition is irrelevant. It was competent to the parties by accord and satisfaction to change the manner of Jackson’s performance; and a substituted parol agreement, whether made before or after breach of the covenant in the' original agreement, is a good accord and satisfaction of the covenant. McCreery v. Day, 119 N. Y. 1; 28 St. Rep. 597. True, performance of the substituted promise is required to effectuate an accord and satisfaction; but the is so only provided it was not agreen that the promise should in itself take the place of the precedent obligation, Kromer v. Heim, 75 N. Y. 574. Such, however, was the agreement in the case at bar. Jackson testified that the company promised to accept the notes in payment of the agreed loan, and did so accept them. Ample consideration for the company’s promise and acceptance is furnished by the facts that relying upon them Jackson forebore making the loan in money, and that the repudiation of the acceptance of the notes in satisfaction of the agreed loan will subject him to a forfeiture of the fruits of his further performance of the original agreement and the recovery of the moneys actually paid on account of the agreed loan. If evidence of the substituted agreement is received without valid objection, it cures the omission to plead the agreement, Fallon v. Lawler, 102 N. Y. 228; 1 St. Rep., 397, and defendant’s objection to the evidence was invalid because nogroqnd therefor was stated, Crawford v. Met. Flev. Ry. Co., 120 N. Y., 624; 30 St. Rep., 866; Cruikshank v. Gordon, 118 N. Y., 178; 28 St. Rep., 784; Stouter v. Manhattan Ry. Co., 3 Silvernail Court of App. R., 472; 38 St. Rep., 162.

Any defect in the complaint which could have been obviated by amendment was waived by proceeding to trial without objection ; and plaintiff was thereafter entitled to recover upon the cause of action as established by the evidence, Knapp v. Simon, 96 N. Y., 284.

It was harmless error for the trial justice to refuse to find at defendant’s request that Jackson overdrew his account by three hundred and twenty-five dollars and thirty-eight cents. The justice found defendant entitled to a credit for that amount and the same was allowed him out of the sum to which plaintiff was adjudged entitled.

So also it was harmless error’, if we concede appellant’s contention that the company’s liability to Jackson arising out of its acceptance and retention of the latter’s unpaid note for twenty-two hundred and fifty dollars was among the issues litigated or to be litigated in this action for the justice to conclude, as matter of law, that defendant was not liable to plaintiff by reason of the facts stated. The error was beneficial rather then prejudicial to defendant. Besides, if the liability was not among the issues litigated, or proper to be litigated, then the judgment is neither presumptive nor conclusive evidence for or against defendant in that respect,Lorillard v. Clyde, 122 N. Y., 41; 33 St. Rep., 303.

No error is presented by the record which requires reversal of the judgment.

Judgment affirmed with costs.


author: Daly, Ch. J.

text:
    Charles H. Caldwell, Resp’t, v. The Central Park, North & East River Railroad Company, App’lt.

      (New York Common Pleas, General Term,

      Filed February 5, 1894.)

    1. Appeal.—Motion to strike out.
    The refusal of the court to strike out all the testimony on a subject, where no ground for the motion is stated, is proper.
    8. Same.—Charge.
    A charge, in an action for an assault, that, if the plaintiff is entitled to a fair and reasonable compensation for the pain and suffering which he has endured, is no error.
    3. Damages.—Nominal.
    There is no rule which limits the recovery for a wrongful assault to nominal damages.
    Appeal by defendant from a judgment entered upon the verdict of a jury in favor of the plaintiff for $750 damages for being forcibly ejected from defendant’s car at the south ferry. Appeal from order denying a motion for a new trial.

      Wolff & Hodge (Robert Seiuall, of counsel) for def’t-app’lt; Traax & Crandall (Chauncey S. Truax, of counsel) for pl’ff-resp’t. „ ,
   Daly, Ch. J.

Plaintiff says that just as he was about to board a car of defendant at the South Ferry, the conductor accused him of being drunk and shoved him off with such violence that he fell and sustained the injury to his wrist and arm, for which he sues. A witness, O’Donnell, who says that he was ten or fifteen feet distant, corroborates the plaintiff as to the assault; and another witness, Gibbons, who was thirty feet away, saw the conductor shove the plaintiff off, saw the latter fall and was told by the conductor that he put the man off because he was drunk. The conductor testified that the plaintiff entered his car and became disorderly and was ordered off, but refused to go, that he laid his hand on plaintiff’s shoulder, but did not pitch him off, and that plaintiff got off and wanted to fight witness, who then started his car and left the scene. The driver heard the plaintiff abuse the conductor and saw the latter take him by the shoulder and put him off the car, and he testifies that the plaintiff stepped off. No other witnesses saw the occurrence. Upon this state of the proof, we are asked to say that the plaintiff’s story is improbable and that a verdict in his favor for assault is against ithe weight of evidence. Several other witnesses, the policeman on duty, sundry drivers and conductors and the starter of defendant, were called as witnesses, but none of them saw the plaintiff until he left the car or was ejected from it, and their evidence is relied upon to sustain the claim that the plaintiff was intoxicated and disorderly.

The fact that the plaintiff was ejected from the- car is beyond dispute and the question for the jury was whether it was justified by his intoxication and whether unnecessary force was used. Upon the first point, there was the evidence of all the plaintiff’s witnesses that he was sober and the admitted fact that immediately after his ejection he was put on another car by the starter and sent up to the office of the company to report the conductor if he desired to do so. Upon the question of the use of excessive force, we have the testimony of the plaintiff and his two witnesses against that of the conductor and the driver and the preponderance seems to us to be with the plaintiff. But all of the evidence was fairly submitted to the jury and their verdict cannot be disturbed.

Error is claimed in the refusal of the court to strike out of the testimony of the hospital surgeon a statement that the plaintiff was not intoxicated when he came for treatment on the day of the accident. The surgeon testified that he had no memory of the matter except from the record in his book, which he produced in court, but no objection was taken to his testimony although the book ,was not offered in evidence; but when subsequently on cross-examination the witness repeated his statement that he had no memory as to whether plaintiff was intoxicated or not excepting what he saw in the book, defendant moved to strike out all of his testimony on that subject. The motion was properly denied, for it did not appear that the book contained nothing on the subject and defendant had previously permitted the witness to testify to the fact without calling for the book as the best evidence. Had it appeared from an inspection of the book that the record contained nothing on the subject of the plaintiff’s sobriety the motion would have been proper; or had the motion been made upon the ground that the book was the best evidence its denial would have been error. No ground, however, was stated for the motion, and the defendant’s adversary and the court were left to conjecture upon what it was founded.

It was not error to refuse to charge the jury that if the plaintiff’s injuries were received by his slipping on the icy pavement after he was safely standing on the street nominal damages only could be awarded, even if the jury believed he was wrongfully assaulted. There is no rule which limits the recovery for a wrongful assault to nominal damages. Besides, there was po evidence that plaintiff slipped on the ice. The defence denied that he fell.

Exception was taken to the charge of the j udge that if the plaintiff was entitled to a verdict he was entitled to a fair and reasonable compensation for the pain and suffering, both mental and physical, which he had endured. It is argued that the plaintiff alleged no mental pain and that none had been proven. With human beings mental sufferings is inseparable from physical pain and agony and a condition of long and continued sickness and disability, all of which were proven, and the mental pain and suffering referred to by the trial judge could not have been understood as including anything more than the inevitable concomitants of the physical suffering. The criticism upon the charge is unsubstantial.

The last objection raised is that the verdict of $750 was excessive, but we think it not unreasonable compensation for an unjustifiable assault, which deprived plaintiff for several months of the use of his arm and caused him pain and suffering.

The judgment and order should be affirmed with costs.


text:
    John Sternwald, Resp’t, v. Solomon N. Siegel et al., App’lt.

      (New York Common Pleas, General Term,

      Filed February 5th, 1894).

    1. Contract—statute of frauds.
    A transfer of property, without other consideration than an oral promise on the part of the vendee to discharge certain specific demands against the vendor, is not within the statute of frauds and void because not in writing.
    2. Trespass—Wrongful levy.
    Parties, who actively participate and direct the marshal in the seizure of, and levy upon property, are trespassers equally with the marshal.
    3. Appeal—Dismissal.
    Where the defendant, at the close of the testimony, does not ask that the complaint be dismissed or a verdict be directed in his favor, he is precluded from ques'ioning the sufficiency of the evidence for submission to the jury.
    4 Same—Objection.
    An objection to the admission of evidence, or a motion to strike out an answer, where no ground therefor is stated, is of no avail.
    Appeal from a judgment for plaintiff on the verdict of a jury; and from an order denying defendants’ motion for a new trial made on the minutes.
    Action to recover damages for defendants’ trespass in causing plaintiff’s store to be entered and seized, its contents carried away and the business to be destroyed. The defense was that the store was entered and seized, and the contents levied upon, under an execution against property which was issued upon a judgment recovered by the defendants, and that the judgment-debtor was the owner of the store and contents at the time of the seizure and levy.

      A. & L. Levy {Anthony, of counsel) for appl’t; D. M. Porter, for resp’t,
   Bischoff, J.

After both sides had concluded their introduction of evidence, and when the .cause was about to be submitted to the jury, it appeared that plaintiff had accepted the transfer to him of the judgment-debtor's store, and its contents, before the seizure thereof, and levy thereon, by the marshal to whom the execution was directed, without further consideration than his oral promise to discharge certain specific demands against the judgment-debtor, which aggregated five hundred dollars; and plaintiff’s recovery in this action is now assailed upon the ground that the promise to pay the demands was within the Statute of Frauds and void because not in writing, and that the undisputed evidence, therefore, shows that no consideration whatever was paid for the transfer; and hence that it was conclusively fraudulent as against creditors of the judgment-debtor.

, This contention, however, is without merit. Plaintiff’s promise was enforceable against him as an original one, made upon an independent consideration, beneficial to him, and devolving the obligation to pay the demands as«agreed. White v. Rintoul, 108 N. Y., 222, 227; 13 St. Rep. 495.

The evidence shows 'that the defendants actively participated, and directed the marshal in the seizure of and levy upon the store and contents. This constituted them trespassers equally with the marshal and subjected defendants to joint and several liability therefor. Dyett v. Hyman et al, 129 N. Y. 351; 41 St. Rep. 644 and upon a charge to which no exception was taken the learned trial judge fairly submitted the question of the bonafides of the transfer of the store, and of defendant’s participation in its'seizure, to the jury, whose determination upon a mere conflict of evidence we are not authorized to disturb. Besides, when the introduction of evidence for both sides was at an end defendants did not ask that the complaint be dismissed or a verdict be directed in their favor. Hence, they should now be precluded from questioning the sufficiency of the evidence for submission to the jury. Bennett v. Levi, 46 St. Rep. 754. If it was error to deny defendants’ motion to dismiss the complaint when plaintiff rested, the evidence thereafter adduced by either party obviated it. Meyers v. Cohn, 4 Misc. R. 185; 53 St. Rep. 223.

Plaintiff was asked on direct examination “Did you have any transaction with Mr. Lindahl about the 21st of July, 1892?” No exception was taken to the overruling of an objection by defendants’ counsel, and the objection itself was invalid because no ground therefor was stated Cruikshank v. Gordon, 118 N. Y. 178, 186; 28 St. Rep. 784. The motion to strike the answer out also fails to present any ground therefor, and was adressed to the discretion of the court because no valid objection to the question was made. Platner v. Platner, 78 N. Y., 90, 101. It was competent for plaintiff to show payment of the demands agreed to be paid by him. The exception, therefore, to the question on plaintiff’s direct examination “What was done by you with reference to the debts to the other persons, other than yourself? ” is unavailable. The question did not call for the narration of a conversation with any person as contended. An objection to an answer of the witness, without a motion to strike the answer out, does not present error. Hence the exception based upon an objection to Lindahl’s testimony as to why he made the transfer to plaintiff is invalid. Platner v. Platner, supra. The objection to the question asked of Lindahl to state what goods the marshal took, and their value, specifies no ground. It was competent for plaintiff to show that the marshal entered his store with the intention of seizing it under the process directed to him, as well as that the demands which plaintiff had agreed to pay in consideration of the transfer of the store to him, were actual and subsisting. The objections, therefore, to the introduction of this evidence present no error.

The judgment and order should be affirmed with costs.


text:
    Francesco Romano et al., Resp’ts, v. Francis Irsch, App’lt.

      (New York Common Pleas, General Term,

      Filed February 5, 1894.)

    1. Pleadings—Reply.
    Allegations in an answer which, though inform a counterclaim, merely negative any liability of plaintiff, require no reply.
    8. Same.
    But, in case it is tried upon its merits as a counterclaim, this concession on the part of the plaintiff does not deprive him of the right to interpose any defense to it which he could have set up if it had been properly pleaded.
    8. Evidence.—Charter party.
    A charter party, though the defendant is not named therein, is admissible in evidence, where it was made for his benefit and he was consignee of the cargo.
    4. Same.—Documentary.
    An error in the admission of documents, purporting to come from the the defendant, without proof that he issued or authorized them, is cured by subsequent uncontradicted evidence that certain of them were in his handwriting and the others issued by his authorized agent.
    Appeal by defendant from an affirmance by the general term of the city court of a judgment in plaintiffs’ favor, entered on the verdict of a jury. Appeal from an order denying defendant’s motion for a new trial.

      John Mulholland, for app’lt; Gonvers & Kirliii (J. Parlcer Kirlin, of counsel) for resp’ts.
   Daly, C. J.

The plaintiff’s sued, as owners of the bark “ Gruilio R,” for carrying a cargo of bones consigned and delivered to defendant. The charge for freight was $1,334.33, and the defendant was credited with sundry payments thereon, leaving a balance of $210,43. The answer was a general denial and a counter-claim of damages for failure to deliver the cargo in conformity with the charter-party. It is a peculiarity of the counterclaim that it. expressly avers that the bark “ G-uilio R ” was not owned by the plaintiffs, and yet is based upon an alleged contract made with the bark. These allegations negative any liability of plaintiffs for the breach of contract, and the answer, therefore, contained no counterclaim against them and the plaintiffs were justified in interposing no reply. Upon the trial of the action, however, it was amply proved that the plaintiffs were the owners of the bark and the counter-claim was tried upon its merits, with the result that the jury disallowed all the alleged items of damage. Mow it is urged that, there being no reply, the counterclaim was admitted, and there was no issue thereon to be submitted to the jury. This position is wholly untenable. The counter-claim as pleaded called for no reply, and when it was afterwards tried upon its merits this concession on the part of the plaintiffs did not deprive them of the right to interpose any defence to it which they could have set up if it had been properly pleaded, Arnold v. Angell, 62 N. Y. 508 ; Heyman v. Schmidt, 19 N. Y. Supp. 215; 46 St. Rep. 194.

The counterclaim was properly disposed of on its merits. The delay in the delivery of the bones was due to legal proceedings not instituted by the plaintiffs and for which they were in no wise responsible. Mor are plaintiffs chargeable with the amount of wharfage which defendant paid in order to release his goods, wharfage being no charge against the cargo.

The principal complaint of the appellant is in the admission of evidence. The charter-party was admitted although defendant was not named therein. It subsequently appeared, however, that he was the consignee of the cargo and that the charter-party was made for his benefit. Its admission, however, in no wise injured him, for the dispute upon the trial had reference solely to the merits of the counterclaim. Other documents purporting to come from defendant were admitted without proof that he issued them or authorized them but this error was cured by subsequent uncontradicted evidence that certain of them were in his handwriting and the others issued by his authorized agent Byrnes v. Byrnes, 102 N. Y. 4. An examination of the case fails to disclose error in the rulings on the trial.

The judgment and order must be affirmed with costs.


text:
    Louis Sier, Resp’t, v. James H. Bache, App’lt.

      (New York Common Pleas, General Term,

      Filed February 5, 1894.)

    1. Pbincipal and agent—-special.
    An implied agency to receive payment does not include an authority to compromise a claim or to receive anything in payment but money.
    2. Evidence—Agency.
    An agency cannot be established by the declarations of the agent alone.
    Appeal from a judgment of the district court in the city of Mew York for the eleventh judicial district, rendered by the justice without a jury in favor of the plaintiff.
    Action for work, labor and services. The defendant set up the defence of payment and tender, and counterclaim, the basis of the defense being an alleged agreement by the plaintiff to pay defendant for certain medical services rendered to plaintiff’s servant. It appears that defendant had presented his bill to the plaintiff’s foreman or bookkeeper and also a check for $5.85, the difference between the defendant’s bill and that rendered for the claim now in suit by the plaintiff to. defendant; that the book-keeper endorsed a receipt of payment upon the latter and accepted defendant’s bill, receipted and the check. Thereafter the plaintiff returned to defendant such receipted bill and check and brought this action for the amount of the bill previously rendered by such plaintiff to defendant. The amount of plaintiff’s claim was admitted to be correct and the defendapt took the affirmative.

      I. Newton Williams, for app’lt; A. Lamont, for resp’t.
   Bischoff, J.

Nothing appears from the record in support of the appellant’s contention that the justice’s determination in favor of the plaintiff was based upon the provisions of the statute of frauds with reference to a verbal contract to answer for the debt of another. The question litigated was whether or not a contract to pay for certain services had been made, and upon this question the evidence was conflicting, and was not, we consider, of a convincing character in favor of the defendant sufficient to justify a reversal of the judgment on that ground. Weiss v. Strauss, 39 St. Rep. 78. It is urged that error appears in the rulings upon evidence. Under his defense of payment defendant offered in evidence, the plaintiff’s bill for the services which constitute the claim in suit, such bill having been receipted by plaintiff’s bookkeeper at the time when the defendant tendered his receipted bill for the services, performed under the contract sought to be proven by the defendant, together with a check for the difference between the two accounts. The tendered bill and check were accepted by the plaintiff’s book-keeper but were returned to the defendant by the plaintiff. It is not claimed that they were not returned in due season. These two bills and the check were excluded by the justice, as was also certain evidence as .to the conversation between defendant and the book-keeper at the time of the alleged payment. The exceptions taken to these rulings do not present error. There is no proof that the book-keeper was the plaintiff’s general agent The defense rents upon an implied agency to receive payment, a special agency merely, and it is uniformly held that this does not include an authority to compromise a claim or to receive anything in payment but money. See Story on Agency, § 99 ; Ward v. Smith, 7 Wallace (U. S.) 451. By ratification alone, then, could the agent’s act in this case bind the principal, and here the act was repudiated by the plaintiff by his returning the defendant’s receipted bill and check, and, therefore, the documents offered were incompetent, the foundation for their admission as evidence to charge the plaintiff not being established. There being thus no extrinsic circumstances to establish the agency in this regard, the conversations between defendant and the book-keeper, in the absence of plaintiff, were inadmissible since agency could not be established by the declarations of the agent alone. Peoples' Bank v. St. Anthony's Ch., 109 N. Y. 525; 16 St. Rep. 856; Snook v. Lord, 56 N. Y. 605 ; Fowler v. Howe Machine Co.. 20 W. Dig. 521; Woods v. Franklyn, 46 St. Rep. 396; 19 N. Y., Supp. 376.

Judgment affirmed, with costs.


author: Bookstaver, P. J.

text:
    Charles F. Winch, Resp’t, v. Wallace C. Andrews, App’lt.

      (New York Common Pleas, General Term,

      Filed February 5, 1894.)

    Appeal—Dismissal.
    In a personal action where the plaintiff, at the close of the case, unquaL ifiedly admits that he has no right of action against defendant individually and does not move to amend his complaint, a motion to dismiss should he granted.
    Appeal from a judgment of this court entered upon the verdict of a jury and from an order denying a motion for a new trial upon the minutes.

      James W. Hawes, for app’lt; Frederick G. Gedney, for resp’t.
   Bookstaver, P. J.

This action was brought to recover commissions as broker upon the sale of “2,000 shares of the stock of the Standard Gras Light Company, 1,000 preferred and 1,000 common, to one B. T. Babbitt, under an alleged agreement with defendant that plaintiff should receive five dollars for each share of the common and preferred stock sold by him or through his instrumentality. The complaint further alleges that plaintiff was misled by certain false and fraudulent representations of the de-, fendant, relying upon which he accepted $500 as his compensation in the matter. The action is brought against the defendant individually. The facts admitted and proven on the trial show that the preferred stock was the property of the gas company of which defendant was president, and that the common stock belonged to him individually.

At the close of the case it was admitted by plaintiff’s counsel that plaintiff had no right of action against defendant individually for commissions on the sale of the preferred stock, as such stock was owned by the company and not by the defendant; but neither at that time nor at any other did he move to amend his complaint. The court charged at defendant’s request as follows: “ If the jury find that plaintiff was not employed by defendant to sell the 1,000 shares of preferred stock bought by Babbitt, but was employed to make said sale by the Standard Gras Light Company, and made sales on its account, then he cannot recover in this case upon the cause of action set forth in the complaint herein from the defendant Andrews any sum as a commission for the sale of the 1,000 shares of common stock owned by Andrews and bought by Babbitt,” which was not objected to nor excepted to by plaintiff. Thus the law of this ease as so charged was accepted by both parties.

In view of the unqualified admission of plaintiff’s counsel and under such accepted statement of the law, and in view of the pleadings, the motion to dismiss made by defendant at the close of the case, should have been granted, and therefore as its denial was duly excepted to, the judgment and order must be reversed, and a new trial ordered with costs to the appellant to abide the event.


text:
    Bridget Geraghty, App’lt, v. Jacob New, Resp’t.

      (New York Common Pleas, General Term,

      Filed February 5, 1894.)

    Parent and child—Loss of service.
    In an action by a mother for loss of services of an infant child, the mother must allege and prove that, at the date of the accident, the child was in her service.
    Exceptions taken by plaintiff to the dismissal of her complaint -ordered to be heard in the first instance at the general term. The action was brought to recover damages for the loss of services of the plaintiff’s minor son, who was injured on the 31st day on March, 1891, in a passenger elevator in defendant’s premises, 24 North Chambers street. At the time of the accident the plaintiff’s husband, the father of the minor, was living, and he died nine months and twelve days after the accident to the child. Upon proof of these facts the trial court dismissed the complaint on the ground that the plaintiff had no cause of action:

      Benjamin Patterson, for app’lt; Campbell & Murphy, for resp’t.
   Daly, C. J.

The right of a parent to recover for injuries to a child is in an action for loss of services and is based, therefore, upon the supposed relation of master and servant, and not upon the relation of parent and child, Kennedy v. N. Y. C. & H. R. R.R. Co., 35 Hun 186. Such right of action can only accrue to one who stands in the relation of master to the child when the wrong is inflicted. A person by whom the relation is subsequently assumed, or upon whom it subsequently devolves, cannot of course have such an action for the injury done not to him but to a former master. As the father was living when this child was injured, he only had the right of action against the wrongdoer, for his right alone was affected by the trespass.

The right of a mother, a widow, to recover for the loss of services of her child does not exist unless the child resides with her and is supported by her at the time of the commission of the wrong which deprived her of its services. At common law, the mother has not, like the father, a legal right to the services of a minor child, and there is consequently no ground for implying the relation of master and servant between them. The relation must be actual or cannot exist. The father may have an action even although his child be actually in the service of another at the time of the infliction of the injury, for he has a legal right to the services of the child .and may command them at any time; but the mother has no si legal right and there is no relation of master and servant betw her and the child while the father is living. The father has y action for loss of services in a case of seduction, though, at' /e time of the commission of the offence, the daughter was in the service of the wrongdoer or of a third party; but if the father be dead, the mother has no action unless the daughter at the time of the offense resides with her. This was held where the seduction was in the lifetime of the father, but the child was not born until after his death and the mother paid the lying in expenses. It was adjudged that she could not maintain an action because the daughter was not in her service but the service of the father at the time of the commission of the offence. And so where the daughter was seduced by the defendant while in his service, and in consequence of her pregnancy returned to her motner who maintained her until after her confinement. Lord Denman said that to support such an action, the defendant’s act must have been wrongful to the plaintiff; and he asks, how can it be unless the relation of master and servant subsists at the time of the seduction. On the same point, Gibson, 0. J., said: “A party cannot entitle himself to an action for what was no wrong to him.” There is no action maintainable except upon the ground of the supposed relation of master arid servant Bartley v. Richtmyer, 4 N. Y. 38, where the authorities above referred to are reviewed.

The courts do not lose sight of the old principle that the loss of services is the foundation of the action, 17 Am. & Eng. Ency. of Law, 388 and cases cited; White v. Nellis, 31 N. Y. 405 ; Dain v. Wycoff, 7 N. Y. 191; Mulvehall v. Millward, 11 N. Y. 343. In the present case the plaintiff, the mother of the child, was not entitled to defendant’s services at the time of the injury complained of because the father was living and upon principle and authority she cannot recover damages for such injury. In an action by a mother for damages for loss of services of an infant child, the mother must allege and prove that at the date of the accident the child was in her service. Matthews v. Mo. P. R. Co., 26 Mo. App. 75.

By a late statute of our state, Chap. 175, Laws of 1893, taking effect March 22nd, 1893, every married woman is constituted joint guardian of her, children with her husband, with equál powers, rights and duties. What effect this provision may have upon a right of action for injuries to a child, inflicted after the passage of the act, may be an interesting question; but the injury complained of in this action occurred before the law had invested' the mother with rights similar or equal to those of the father.

The complaint was, therefore, properly dismissed; the exceptions must be overruled and judgment ordered for the defendant.


author: Bookstaver, J.

text:
    George H. Eldridge et al., Resp’ts, v. Moses R Crow, App’lt.

      (New York Common Pleas, General Term,

      Filed February 5, 1894.)

    1. Contract—Indemnity.
    An action cannot be brought upon an agreement “to indemnify and keep harmless,” when neither payment has been made ijor liability adjudged.
    2. Evidence—Paeol.
    A parol agreement that the settlement of a third party’s claim was to be a condition precedent to the payment of a note, cannot be proved to defeat a recovery thereon.
    Appeal from a judgment of the city court entered upon the decision and order of the court at special term sustaining a demurrer and from that decision and order.

      Albertus Perry, for app’lt; B. B. Msler, for resp’ts.
   Bookstaver, J.

This action is upon a promissory note. The answer sets up a counterclaim, to which the plaintiffs demur on-the ground that the counterclaim is not of the character allowed by law, not being a cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiffs’ claim and on the further ground that it does not state facts sufficient to constitution a cause of action.

The facts as appear by the pleadings are these. The village of South Mt. Vernon entered into a contract with a certain company, granting them the privilege of establishing and operating a system of water-works in the village. The company on its part agreed not to unnecessarily obstruct the streets in tíre process of constructing the works, and within a reasonable time after using the streets to restore them as nearly as practicable to their former condition and to hold the village harmless from any and all damage arising from the negligence or mismanagement of the water company, or its assigns, or its employees in constructing and operating the said works.

Subsequently the water company engaged the defendant to do a portion of the work of construction by a contract identical in its essential features with the one above stated with the additional agreement that defendant should assume and perform all convenants and obligations entered into and incurred by the water company in its contract with the village.

The defendant then engaged the plaintiffs to lay water pipes in certain streets under a contract which provided that “upon completion of the trench for the laying of said water pipe, all rubbish and material should be removed from the streets * * * and that the plaintiffs should be responsiblefor any all and injury to person and property caused by any want of care or neglect on the part of themselves, their servants or agents in the prosecution of said work”. And it was also provided that “said plaintiffs should keep .lights at night upon all open trenches while engaged in the performance of their said contract.” The answer then goes on to allege performance on defendant’s part but that the plaintiffs did not remove rubbish etc., and did not keep lights upon open trenches at night “and in consequence thereof, one John O’Hara, while lawfully traveling and driving a team of horses upon one of said streets without fault on his part drove into said trench, so carelessly and negligently left open by the plaintiffs, and thereby one of his horses was so injured as to be rendered worthless, and other damage was sustained by said O’Hara, and the said O’Hara has presented a claim, as this defendant is informed and believes, to the board of trustees of said village, for the sum of one thous- and dollars ($1,000), alleging that by the accident aforesaid he sustained damages in that sum.” The defendant also alleges that under his contract with the water company he is liable for all such damages sustained by O’Hara. Also that the note sued upon “was given on account of plaintiffs’ services under their said contract by him and accepted by the plaintiffs subject to and upon condition that the plaintiffs settled with and satisfied the said John O’Hara for his claim for damages as aforesaid”; and that they have not so settled or satisfied it.

The first ground of the demurrer is plainly untenable. Conceding for the purpose of examining its character, that a cause of action is set up in the answer it is certainly one on contract and consequently permissible under subd. 2; if not (as plaintiffs argue conclusively), under subd. 1, of § 501 of the Code of Civil Procedure. Whether any cause of action at all is stated is a more serious question. ’ According to the answer the plaintiffs agreed in their contract to “ be responsible for any and all injury to person and property caused by any want of care or neglect on the part of themselves, their servants or agents ifi the prosecution of said work.” Nothing is said as to how this responsibility is to be determined' or when it is to be discharged. Surely the meaning cannot be that it is to be determined by the mere fact that someone has presented to the village a claim for damages, alleged to be due by reason of plaintiffs’ fault, and that plaintiffs must straightway pay that amount to the claimant or suffer an equivalent deduction from the agreed sum due under the contract and promised in the note sued upon. The answer does not purport to set forth this contract ipsissimis verbis, but presumably it contains the same covenant as is found in, the two preceding and connected contracts, viz.: “to hold the said village harmless from any and all damage.” At any rate, since O’Hara has presented his claim to the village, the only way in which any loss appears 'to be threatening the defendant is through this covenant in his contract with water company, and that covenant is not broken until some harm comes to the village. In Kohler v. Matlage, 72 N. Y., 259, 266, the court said: “It is settled that upon an obligation to do a particular thing, or to pay a debt for which the covenantee is liable, or to indemnify against liability, the right of action is complete on defendant’s failure to do the particular thing he agreed to perform, or to pay the debt or discharge thé liability. Belloni v. Freeborn, 63 N. Y., 383 ; Churchill v. Blunt, 3 Den. 321; Thomas v. Allen, 1 Hill, 145. The distinction is clearly defined between such an obligation and an indemnity against loss or damage by reason of a liability. In the former case the covenantee is to be saved from the thing specified, and in the latter from the consequences of it; Gilbert v. Wiman, 1 N. Y. 550; Belloni v. Freeborn, 63 N. Y. 383 ; Churchill v. Hunt, 3 Den. 321; Thomas v. Allen, 1 Hill, 145.” The agreement here belongs on authority to the latter class. In Wright v. Whiting, 40 Barb., 235, 238, it was said that under an agreement “to indemnify and keep harmless” the defendant was clearly not liable until something had been paid by the covenantee. But whether in such a case as this both payment and liability must concur before a right of action arises from the covenant of indemnitjr, it is not necessary to decide, because there is here,, neither the one nor the other. Although the decisions on this subject are widely variant we do not find that it has ever been held that an action can be brought when neither payment has been made for liability adjudged. See Merlette v. N. & E. River Steam Boat Co., 13 Daly, 114. In the Eagle Tube Co. v. Edward Barr Co., 16 Daly, 212; 32 St. Rep. 299; relied upon by the appellant, the defendant had substantially made payment and on facts clearly establishing a liability to pay.

Appellant’s counsel also urges that, without the allegations relating to O’Hara’s damages, the answer states a good cause of action in that it alleges the plaintiffs’ breach of their agreement to remove rubbish and material from the streets and that by reason of this breach the defendant sustained damage. Had the pleading stopped here, this argument might have been good; but, instead, it goes on to specify in what the damages consisted. But, as has been said, these alleged damages can not be allowed as such. In his argument the counsel says that the expense of removing the rubbish and material was a damage which flowed necessarily from plaintiffs’ breach, and the defendant is entitled to recover such damage. Hot even in his brief, much less in the pleading, is it contended that the defendant incurred the expense of such removal. On the contrary, the clear inference from the answer is, that the only damage complained of is that which is likely to fall upon him because of the O’Hara accident. We see no reason why the maxim expressio uni us est exclusio alierius should not apply in such a case as this, where an unverified general denial was first put in, then leave to serve an amended answer was obtained, and finally the present evasively worded counterclaim set up. The suspicion that a desire for delay and not a consciousness of a meritorious defense prompts defendants’ course is hard to escape.

The allegation that the note on which the action is brought was given and accepted upon condition that the plaintiffs settle with O’Hara for his claim for damages presents no good defense. There is no allegation that such settlement was to be a condition precedent to recovery upon the note, and even if it were, it would be a parol agreement which could not be proved to vary or defeat the written contract; Bank of Albion v. Smith, 27 Barb, 489, and cases cited; Schmittler v. Simon, 101 N. Y., 554; Burhans v. Carter, 13 Hun, 153; Cramer v. Lovejoy, 17 Wkly. Dig. 381. Heither is there any statement that the agreement to settle O’Hara’s claim was any part of the consideration of the note, on the contrary it is expressly said to have been given “ on account of plaintiffs’ services under their said contract. Furthermore, this agreement is not upon any construction a good defense because if it was merely a re-affirmance of the liability already existing on the original written contract, it was futile to replead it. If, on the other hand, it adds to the former liability by binding the defendant to pay O’Hara’s claim whether valid or not, it is sufficient to say that no consideration appears. The giving of the note was not a consideration because that is stated to have been given on account of plaintiffs’ services under the original contract.

The judgment of the court below must therefore be affirmed with costs.


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    James McComb, App’lt, v. Matilda von Ellert, Resp’t.

      (New York Common Pleas, General Term,

      Filed February 5, 1894.)

    Broker—Commissions.
    Where a broker has earned his commissions, a subsequent agreement not to claim or demand them is without consideration and cannot affect the owner’s obligation to pay them.

      Appeal by plaintiff from a judgment entered upon a verdict directed in defendant’s favor.

      Geo. W. Dease, for app’lt; Chas. K L. Jeliffe, for resp’t.
   Daly, C. J.

According to the testimony of the plaintiff he was employed by the defendant about October 1st, 1890, to sell her property on Lenox avenue, between 113th and 114tb streets, for a commission of one per cent. It was to be conveyed subject to a mortgage of $94,000 at five per cent. The plaintiff procured a purchaser willing to give $145,000. This was accepted and his commission agreed to by defendant and a contract was drawn up and signed by the latter and the purchaser, Joseph Sault, on October 10th, 1890. By the contract a delivery of the deed was fixed for November 11th, 1890, but was then and from time to time thereafter adjourned until January 5th, 1891, but the deed was .never delivered, nor the sale consummated. At the time the contract was executed the defendant requested the plaintiff to waive his commission for thirty days because she was getting only $2,000 down and needed the money to pay off interest and taxes and thereupon the plaintiff signed a paper as follows:

“I, James McComb, in consideration of Mathilda von Ellert executing a contract for sale of premises on Lenox ave., bet. 113 and 114 sts., N. Y., do hereby agree to neither claim or demand commission for procuring such sale until the title to such premises be closed and deed delivered. Upon such title closing or deed delivered I am to receive, one per cent, upon the amount the premises are sold for.
N. Y., Oct. 9, 1890.
J. McCOMB.”

The commissions were not paid and this action was commenced in June, 1891, to recover them.

The defendant’s evidence was that the plaintiff was employed to find a purchaser upon the condition that he was to receive no commission unless the sale was consummated; there being two mortgages on the property, one of $175,000, covering it and other lots of defendant, and another of $222,000, covering both of those parcels and also land belonging to a third party; and there being an apprehension of difficulty in obtaining the amount of the mortgages to an apportionment; and it was claimed that the plaintiff’s agreement of October 9th, expressed the terms of his arrangement as to commissions, and that as the purchaser declined to complete the sale, no commissions were earned. •

The plaintiff denied the arrangement that his commissions were to be contingent upon the consummation of the sale and an issue of fact was thus presented which it was the province of the jury to determine. If the plaintiff’s version of the case was correct he had earned his commissions when he produced a purchaser ready and willing to enter into a contract upon the terms stipulated by the defendant, and a subsequent agreement not to claim or demand commissions was without consideration and could not effect the defendant’s obligation to pay them. Little v. Rees, 26 N. W. Rep., 7.

The recital in the writing that it was in consideration of defendant executing the contract of sale does not establish a valid consideration; for that was the contract which plaintiff was employed to procure and being the consideration for his commissions it could not be consideration for a waiver of them.

It is not necessary to consider how plaintiff’s rights might be affected by the fact that the time fixed by the writing for the payment of the commission, i. e., the delivery of the deed, never arrived ; for the agreement was invalid even as an extension of the time of payment. The writing would be admissible in evidence upon the issue whether the original employment was upon condition that if there were no sale there should be no commissions, and the jury might consider it in weighing the evidence upon that question, but it would not be conclusive.

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


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    Charles W. Klebisch, Resp’t, v. Charles Siedler, App’lt.

      (New York Common Pleas, General Term,

      Filed February 5, 1894.)

    1. Receiver—Liability.
    A receiver is liable in a personal action where he contracts personally.
    .8. Appeal—Request to charge.
    A refusal to charge a request which deprives the defendant of the right to a conceded credit if the jury should believe his theory of the case, is error.
    Appeal by defendant from an affirmance by the general term ■of the city court of a judgment in plaintiff’s favor, entered upon the verdict of a jury. The action was for moneys laid out and expended upon the premises 69 East 106th street, and also for legal services in examining the title to the same premises and endeavoring to procure a mortgage thereon. The defences are discussed in the opinion.

      TiUotson <& Kent, for def’t-app’lt; Charles Welite, for pl’ff-resp’t.
   Daly, Ch. J.

The plaintiff was attorney for the Lorillard Brick Works Company, and when the defendant was appointed receiver of that company, the plaintiff continued to render him professional and other services. All of the transactions between the parties had reference to the receivership and the management of its property, no personal or private interest of the receiver being involved ; but he contracted personally with the plaintiff and is liable in a personal action. The premises 69 East 106th street, an unfinished flat', were part of the estate, and having been sold under foreclosure were bought in by the receiver for the benefit of his trust. After the foreclosure, the plaintiff entered into negotiations with the receiver with & view to purchasing the property himself, and the contention of the defendant is that the plaintiff’s outlays (with the exception of a small bill for looking glasses and the commissions paid to brokers in a subsequent attempt to make another sale where the negotiotions with plaintiff fell through,) were for his own benefit as prospective purchaser. This was denied by plaintiff, and as the jury found in his favor for nearly the full amount claimed, we must regard the plaintiff’s cause of action as established.

There were several counter claims, however interposed by defendant’s answer, but only one of them need be noticed since that alone is involved in the consideration of an alleged erroneous instruction to the jury. It appears that another piece of property belonging to the estate, Ho. 59 East 106th St., was conveyed to the plaintiff for a stated consideration, being $4,115 above the incumbrances; which the plaintiff paid by receipting in full for all claims he had against his former client, the Lorrill'ard Brick Works Company, settled at $2,500.00; and by receipting to the receiver for $1,615.67 for past and future legal services rendered to him ; the past services being represented by a bill for $917.99, leaving the credit for future services at $697.58. It was this ballance of $697.58 which the defendant demanded should be set off against or applied upon the demand ip the action.

Upon this plea or counterclaim or set off, issue was taken and the plaintiff testified that the transaction of the conveyance of 59 East 106th St. to him was not a sale, but an arrangement by which he was to hold the property in trust for the receiver and the incumbrancers, and if he effected a sale to a bona fide purchaser at $24,000 he was to apply the $4,115 excess over the incumbrances in the manner designated by the receipts, viz : reimbursing himself with $2,500 for his claim against the company,” $917.99 for his claim against the receiver and holding the balance $697.58, as a credit, available to the latter.

He further testified that no purchaser had been found for the property, that he still continued to manage it as trustee and that he was not indebted to defendant in any sum as consideration for the conveyance to himself, nevertheless, he has rendered a bill to the receiver for legal services for $1,670.38, crediting $697.58 as received on account, and this bill he put in evidence without, however, proving the performance or value of the items.

The case, therefore, went to the jury upon this counterclaim or set off of $697.58, upon the issue whether that sum was to be charged against the plaintiff, as part consideration of the conveyance to him of 59 East 106th St., or was to become operative as a charge only upon the condition of his effecting a sale of the equity at $4,115. If the latter were the case it constituted no counterclaim to the present action; if the former, it was a credit which defendant had a right to have applied upon the demand in this action, unless it had been absorbed in payment of other services. Upon this latter point, the defendant’s counsel asked the court to charge that they should not credit the plaintiff as against the balance of $697.58 with the value of any services except such as have been proven in this action. This was declined, and the defendant duly excepted.

The refusal to charge as requested deprived the defendant of the right to a conceded credit, if the jury believed that plaintiff held the title of 59 East 106th St. in his own right, by permitting plaintiff in effect to extinguish the credit by a mere claim of services without proof of performance or value; and a new trial must, therefore, be ordered. The absence of a special finding by the jury on the main question whether the title was taken by plaintiff as trustee, or not, makes it impossible to ascertain how that issue was decided and leaves the refusal to charge material error.

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


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    Emil Schalk, Resp’t, v. John G. Norris et al., Appl’ts.

      (New York Common Pleas, General Term,

      February 5, 1894.)

    1. Mechanic’s Lien.
    The right to file a lien is confined to one who does work or furnishes materials.
    3. Same.
    An arrangement by the contractor for a division of the profits with another does not alter the effect of the original contract, or deprive him of the sole right of action or sole right to the lien.
    3. Appeal—Exception.
    The failure to object, when the question is repeated, renders a former valid exception of no avail.

      Cannon & Atwater, for resp’t; W. L. Stone, Jr., for app’lt Norris; A. L. Sire, app’lt in person.
   Daly, C. J.

This is an appeal by defendants from a judgment in favor of plaintiff, upon the report of a referee, in an action to foreclose a mechanic’s lien.- The owner of the premises is the defendant Norris, and his agent, the defendant Sire, made a contract with one Hevesy, for cementing the sidewalk and halls of the building for $225. The referee found that Hevesy assigned the contract to the plaintiff, who claims to have performed the work and thereafter filed the lien. The chief contention in the case arises upon this assignment; defendants claiming that it was merely an assignment of payment under the contract and did not give the assignee the right to file a lien ; such right being confined to one who does work and furnishes materials. Roberts v. Fowler, 3 E. D. Smith, 632; Mechanic’s Lien Act, 1885, chap. 342, § 1.

It appears that the plaintiff was to supply the materials with which Hevesy proposed to do his work under the contract, and also the money necessary to complete the job, and that in advance of his furnishing the materials and money it was agreed between them and Sire, the agent of the owner, that when the contract was completed the plaintiff, instead of Hevesy, was to receive the money due under it. Upon this and the further evidence that the plaintiff furnished the materials and supplied money to Hevesy for the labor, the referee was justified in finding that the whole contract was assigned to plaintiff, by Hevesy, and that plaintiff, therefore, did the work and furnished the material for which the lien was filed. There was a conflict between the witnesses as to whether Hevesy paid his own workmen or received money from plaintiff for that purpose; but it was clear from all the evidence, that Hevesy intended the substitution of plaintiff as contractor and that this was agreeable to the owner, who consented to such substitution. The effect of the arrangement was to discharge the owner of all obligations to Hevesy under the contract and to transfer such obligations to plaintiff. It was either a new contract or an assignment of the old, and the finding that it was the latter cannot be disturbed;

The arrangement between the plaintiff and Hevesy was that there should be a division of the profits of the contract. The defendí- nts urge that this constituted a partnership and that the lien should have been filed by both partners. But the arrangement for a division of profits could not alter the effect of defendants’ agreement, which was to pay the contract price to plaintiff exclusively. He, therefore, had the sole right of action as well as the sole right to the lien.

Error is claimed in the admission of incompetent evidence, namely, the testimony of one of the witnesses, Besant, that there was an oral arrangement made. between Hevesy and plaintiff’s agent for the assignment to plaintiff of the contract. It appears that the plaintiff tried to elict from the witness competent evidence on this point by asking .for the conversation between the parties, but this was objected to by defendants on the untenable ground that the conversation took place in their absence. The question was then asked whether there was an oral arrangement for an assignment, and the defendants objected to the question as assuming facts, calling for a conclusion and that the statements attempted to bind the defendants in their absence. The objection was overruled and defendants excepted. One part of the objection was good, viz.: that the question called for a conclusion. It appears, however, from the case that, the question was not answered, the witness saying: “If you will excuse me, will you allow me just to give a statement as the thing happened, because I cannot very well answer that question without I answer something more than what he asked me.” After this the plaintiff’s counsel told the witness to answer the question. No objection was then interposed by defendants, and the witness replied, “Yes, there was.” In view of the fact that defendants, by objecting to perfectly competent testimony from the witness, succeeded in having the only material and proper evidence he could give excluded, it is but fair to hold them to strict practice in taking their objection and exception to the question subsequently put. As it appears that they failed to object when the question was repeated the former objection is of no avail. Where a question is objected to, but is subsequently put and arlswered without objection, the former objection is waived. Wagner v. Jones, 77 N. Y. 590.

The defence seems to be wholly without merit and the judgment should be affirmed with costs.


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    William F. Howe et al., Resp’ts, v. Edward J. Woolsey, App’lt.

      (New York Common Pleas, General Term,

      Filed February 5, 1894.)

    I. Appeal—Case.
    In the absence of a certificate that the case contains all the evidence taken on the trial, the facts are not brought before the general term of the common pleas on appeal from the city court.
    2. Same—Verdict.
    A verdict in favor of a party is conclusive upon the subject submitted, where there is evidence to support the finding independent of his testimony.
    3. Evidence—Co-partnership.
    In an action by a firm, evidence of agreement, not made by a member of the firm, or one who had authority to bind it in the matter, is incompetent to establish a counterclaim.

      4. Same.
    In such action, evidence of an individual transaction with a member of the firm is inadmissible.
    5. Same—Opinions.
    The opinion of an attorney as to the amount for which a divorce could have been settled prior to a default is properly excluded.
    Appeal from a judgment of the general term of the city court affirming a judgment entered on the verdict of a jury at a trial term of that court.

      David May, for resp’ts.

      Wells c6 Waldo, for app’lt.
   Bookstaver, P. J.

J. This action was brought to recover the sum of $500 for legal services rendered to the defendant in various suits between April 12th, 1892, and the 20th day of March, 1893. There is. no statement in the appeal book that the case contains all the evidence taken on the trial, and that it does not, is clear from the fact that it shows two exhibits I and J were received in evidence which are not printed therein. It has been repeatedly held that in the absence of such certificate the facts are not brought before the court at general term for review, much less before this court on appeal from the city court; Hyman v. Friedman, 18 N. Y. Supp. 446; 45 St. Rep. 630; McIntyre v. Tucker, 5 Misc. Rep. 223; 54 St. Rep. 816; there the distinction between the use of the words “ testimony ” and “ evidence ” is pointed out; Aldridge v. Aldridge, 120 N. Y., 614; 31 St. Rep. 948; Upington v. Pooler, 19 N. Y., Supp. 428; 47 St. Rep. 30; Dibble v. Dimmick, 23 N. Y. Supp. 680; 53 St. Rep. 225; McCarthy v. Gallagher, 4 Misc. 188; 53 St. Rep, 176; Halpin v. Phoenix Ins. Co., 118 N, Y. 166; 28 St. Rep. 788; Brayton v. Sherman, 23 N. E. Rep. 471; 28 St. Rep. 854; Porter v. Smith, 107 N. Y., 531; 12 St. Rep. 579; Claflin v. Flack, 13 N. Y. Supp. 269; 36 St. Rep. 728. We cannot therefore inquire as to whether or not the verdict is for excessive damages or against the weight of evidence but are confined strictly to any alleged errors of law that may have been committed during the progress of the trial.

And the first of these is that the verdict is contrary to law. This contention is based npon the fact the complaint alleges that at divers times during the years 1892 and 1893 at the special instance and request of the defendant the plaintiffs rendered certain professional services to him which were reasonably worth the sum of $500 which he promised and agreed to pay; while the evidence is undisputed that the defendant on the 28th of June, 1892 gave the plaintiffs an order for $250 which was subsequently paid, and that therefore under the complaint there could be a recovery for only $250. But the fact of the payment of this $250 was brought out on the examination of one of the plaintiffs who testified not only to this but also to the further fact that this sum was not received on account of the the services sued for but as retainer and for services rendered before those to recover the value of which this action is brought, and the other evidence adduced on the trial seems to us to corroborate this testimony. The witness being an interested one, it was a proper question to be submitted to the jury on all the evidence, and as we read the charge, was properly submitted to them and their verdict in favor of the plaintiff is conclusive upon that subject as there was evidence to support the finding independent of plaintiff’s testimony. Under the evidence we think that such a verdict did follow the allegations of the complaint and is not obnoxious to the rule that judgment should be secundüm allegata et probata.

For the reasons above stated we also think it was not necessary for the plaintiffs to have asked to amend their complaint to conform it to the proofs.

We do not think it an error to admit the letters in evidence by the plaintiffs, as it was a correspondence commenced by the defendant himself and referred to and threw light upon the question in controversy between the parties, and seems to have been naturally written in the usual course and for the purpose of procuring an adjustment of plaintiff’s claims..

Appellant also contends that the court erred in excluding evidence as to defendant’s losses occasioned by the alleged neglect and mismanagement of his business in the matter of forming a corporation to improve and put on the market defendant’s Long Island City lands. The answer sets this forth as a counterclaim against any recovery plaintiffs might make in this action, and in doing so, alleged that the agreement had been made with one Benjamin Steinhart on behalf of the plaintiffs’ firm which the answer had previously alleged him to be a member at the time. This evidence was offered and rejected. It had affirmatively appeared that Steinhart was not a member of plaintiffs’ firm and there was no evidence to show he had authority to bind that firm in the matter which he undertook, if it was undertaken at all; and consequently there could have been no recovery as against the plaintiff on such a claim, and the evidence was properly excluded.

Appellant also claimed that the court erred in excluding evidence as to the amount of moneys due one Samuel E. Eork from Steinhart and one of the plaintiffs, for which Steinhart, as appellant claims, had unlawfully pledged certain- stock belonging to him. But as before stated, Mr. Steinhart was not a member of plaintiff’s firm, and the debt due Rork from Hummel, if any, was an individual transaction between him, Steinhart, and Rork, for which the plaintiffs’ firm was in no way responsible, and it could not be made the subject of an offset or counterclaim as against it

In his answer, the defendant set forth as a defence a counterclaim that the plaintiffs had mismanaged and neglected his business in that they had allowed one of bis cases in court to go by default. In the trial it appeared that this had reference to the fact that the plaintiffs while acting as his attorneys had. suffered a default to be taken against their client for divorce brought by his wife against him. And to further maintain this issue defend, ant called as a witness, Weeks W. Culver, a lawyer, and propounded to him a series of questions asking for his opinion as to the amount which the divorce case could have been settled prior to the default; which were excluded by the count and exceptions taken. We think the court properly sustained the objections, as the questions only called for mere expressions of opinion upon the matter and not for facts, and this reason was given by the court when it excluded the evidence. The other questions asked of this witness and excluded were clearly irrelevant and inadmissible.

The judgment should therefore be affirmed with costs.


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    Herman Kahn, Resp’t, v. The New York Elevated Railroad Company et al., App’lts. Rosanna Mooney, Resp’t, v. Same, App’lts.

      (New York Common Pleas, General Term,

      Filed February 5, 1894.)

    1. Elevated Railway—Easements.
    The refusal of a referee to find that the easements in the street in front of, or appurtenant to, the land, possessed only a nominal value apart from the land itself, is a harmless error, where the referee did in fact eliminate from consideration any value of the easements more than nominal.

      2. Appeal—Evidence.
    An exception to a refusal to strike out evidence does not present error where the motion is not confined to the objectional portion.
    Re-argument of defendants’ appeal from a judgment for plaintiff for injunctive relief and damages for loss of rentals which was entered upon the report of a referee.
    Action by an abutting owner to restrain the maintenance and operation of defendant’s elevated railroad and for damages to the rental value of his premises.

      J. Aspinwdll Ilodge, Jr., for resp’t; R. L. Maynard for appl’ts.
   Bischoff, J.

As the evidence and exceptions in the above entitled actions are substantially alike these appeals were argued as one, and they are, therefore, disposed of by us in like manner. Upon the former argument the several judgments were directed to be reversed for a supposed material error of the referee in refusing to find at the request of defendants’ counsel that the easements in the street in front thereof, and appurtenant to, the land affected by these actions possessed only a nominal value apart from the land itself. This was upon the authority of the ruling in the Bookman case, 137 N. Y. 302; 50 St. Rep. 703, and Sutro case 137 N. Y. 592; 50 St. Rep. 701, which at the time had only been announced. Subsequent decisions of the court of appeals, all of which are referred to in the opinions of the court in the Siruthers and Lindheim cases, 54 St. Rep. 785, 788, clearly point out that the error is a harmless one and so inoperative for reversal, if notwithstanding the refusal to find as stated, it affirmatively appears from the record that in estimating the amount of consequential or fee damages the trial court or referee did in fact apply the proper measure of damages and eliminated from consideration any value of the easement more than nominal. That the referee in deciding the actions did not mistake the measure clearly appears from his “ thirty-fifth ” finding of fact, which is as- follows in each case: “ The permanent value of the premises described in the complaint has been depreciated by the appropriation of the easements of-light, air, and access caused by the road opposite to said premises ” to the extent of the sum fixed in the several cases under review to be paid by defendants as an alternative for the injunctive relief to which the plaintiffs were respectively adjudged entitled. Nothing, therefore, was awarded for the easements themselves and only the effect of the taking of the easements upon the remaining land was considered.

The sufficiency of the evidence in support of the several sums awarded for both fee and rental damages has been heretofore affirmed by us. Kahn case, 3 Misc. R. 611; 51 St. Rep. 255; and Mooney case, 3 Misc. R. 612; 52 St. Rep. 256; and our further scrutiny only aids to confirm the views already expressed.

In the Mooney case the supposed typographical error in the decision and judgment by which it was made to appear that the past damages were computed from October 20th, 1888, the time of the commencement of the action, instead of October 20th, 1882, six years prior thereto, which was alluded to in the opinion on the former argument is obviated by the referee’s supplemental report, and the entry of a corrected judgment on. January 21st, 1893. In the Kahn case the error remains. The evidence, however, amply justifies plaintiff’s recovery for six years prior to the commencement of the action and the time which elapsed subsequent thereto. Bearing this in mind, the amount awarded is not excessive, and as the judgment recovered will, 'in any event, bar plaintiff from successfully claiming past damages for the time anterior to the commencement of the action which the judgment concludes, the date from which the damages are alleged to have been ’ computed is immaterial, and its recital may therefore be treated as surplusage.

In the Mooney case plaintiff’s counsel asked the expert, Curtis, “ Do you know anything about the sale of 316 prior to the last sale? to which the witness responded, “ Yes, sir; not to my own knowledge; they were transferred in 1869 or 1870 for $14,000 or $15,000 several of the houses, that is from the Beal Estate Be-cord and Guide. Thereupon defendant’s counsel moved that the whole answer be stricken out on the ground that the matters testified to were not within the witness’ own knowledge, and as hearsay. The exception to the referee’s denial of the motion does not present error for the reason that defendant’s counsel should have pointed out the particular part of the witness’ answer which was objectionable as hearsay and confined his motion as to that. The first part of the answer was clearly responsive to the question and not objectionable on the ground stated. McCabe v. Brayston, 38 N. Y. 196; People v. Beach, 87 N. Y. 508, 512; Tuomey v. O'Reilly, Skelly & Fogarty Co., 3 Misc. R. 302, 306; 52 St. Rep. 119. The remaining exceptions appear equally without merit.

The judgments should severally be affirmed, with costs.