author: Clement, Oh. J.

text:
    Charles M. Washburn, Resp't, v. George F. Corlis, App'lt.

      (City Court of Brooklyn,

      General Term,

      Filed December 27, 1892.)

    1. Sale—Rescission.
    Defendant sold certain horses and carriages to plaintiff on credit, plaintiff to give back a chattel mortgage, and as security that he would deliver such mortgage, plaintiff gave an assignment of the lease of his livery stable. The giving of the mortgage was delayed at defendant’s request so that plaintiff might try to pay part cash, but he finally decided to stand on the first arrangement. Defendant then took possession of the stable and converted the property. Held, that defendant could not rescind the sale while retaining the assignment of lease and possession of the premises.
    2. Conversion—Damages.
    In an action for the conversion, plaintiff recovered a verdict for the full value of the property. Held, error; that as there were no allegations in the complaint calling for exemplary damages, and a judgment against plaintiff for the purchase price would be worthless, he was entitled to recover only his interest in the property, which would be its value, less the amount of the mortgage to be given.
    Appeal from judgment in favor of plaintiff, entered on verdict.
    Action for conversion. The verdict as rendered was for $6,000, which was reduced by the court to $4,500.

      O has. J. Patterson, for app’lt:

      Wm, J. Gaynor, for resp’t
   Clement, Oh. J.

The questions of fact in this case have been passed upon by a jury, and we, therefore, must assume the truth of the testimony of the witnesses called by the plaintiff. The defendant, who was an undertaker and also in the livery business, sold to plaintiff certain horses and carriages for the sum of $6,000, and, as he was retiring from the livery business, agreed to give his patronage as undertaker to plaintiff. The sale was entirely on credit, and defendant was to give back a purchase-money chattel mortgage, to be payable in monthly instalments of $250. The defendant gave the plaintiff a bill of sale, and delivered possession of the property, and received an assignment of the lease of the stable occupied by plaintiff, though possession was retained by the said plaintiff. The assignment of the lease was given as security to the defendant that plaintiff would deliver the mortgage. There was delay in the execution of the mortgage by request of the defendant, who was desirous that the plaintiff should try to raise $3,000 in cash and pay the same on account of the purchase price. The plaintiff was unable to pay any cash and notified defendant that he stood on the original arrangement. The lease was assigned on October 2, 1891, and on November 7th, the defendant, in the absence of plaintiff, went to his, plaintiff’s, stable and took and retained possession of the same, and converted to his own use the property which had been sold. This action was brought to recover "damages for the conversion of the personal property. A verdict was rendered at the trial for $6,000, which was subsequently reduced to the sum of $4,500, the value of the property as proven by plaintiff.

We think that the learned trial judge properly refused to charge the request, that if the plaintiff was guilty of fraud in inducing the sale, then defendant was entitled to repossess himself of the property. It is difficult to see how the question of rescission was in the case. If the defendant received the lease as security, he could not rescind the sale and at the same time take possession of the stable. The lease was for ten months, from July 1. 1891, to May 1, 1892, and the defendant took and retained possession of the stable without the shadow of right.

The plaintiff was entitled to the possession of the personal property, provided he executed the chattel mortgage for $6,000, payable in monthly instalments of $250, and provided he did not make default in his payments. The plaintiff was ready and willing to carry out his agreement and the defendant was liable for a conversion.

The judgment appealed from cannot be reversed on any exception, and yet we are satisfied that the verdict as reduced is unjust and should not stand. The attorney for the defendant at the trial did not contend that the plaintiff was only entitled to nominal damages, and no exception was taken to the rule of damage laid down in the- charge. The action is simply for conversion, and no claim is made in the complaint for less of use of the property, and no facts are pleaded which might, perhaps, lay the foundation for punitive damages, and plaintiff, on the trial, sought only to recover the value of the property. The measure of damages in an action of trover is the market value of the property. Wehle v. Haviland, 69 N. Y., 448. In this action the plaintiff was only entitled to recover the value of his interest in the property. The value of property in replevin is to be determined by the interest which the successful party has in it Code, §§ 1726, 1727. The plaintiff was entitled to possession of the property until default in payment on his mortgage. He recovered on the theory that he was ready and willing to carry out his agreement with defendant, and his damages were no greater than if the mortgage had been actually executed. If the plaintiff had brought replevin instead of trover, he -would have recovered the property, and then the defendant could compel the plaintiff to execute the chattel mortgage agreed upon between the parties. We are of opinion that, on the question of damages, the right to the chattel mortgage is to be treated as if the mortgage had been actually executed and delivered.

As between mortgagor and mortgagee, where there has been a conversion by the mortgagee, the mortgagor’s interest is the value of the property, subject to the amount of the mortgage. As between the mortgagor and a stranger, such mortgagor is entitled to recover the full value of the property, Marsden v. Cornell, 62 N. Y., 215, and is bound to account to the mortgagee for his interest. Without any authority in point, we should be inclined to hold that the plaintiff in this action could not recover the full value of the property, for which he has paid nothing. It also appears in the case that a judgment against plaintiff for the purchase price would be worthless. The defendant was a wrongdoer and should be punished in damages, and for trespass in taking possession of the livery stable; on proper allegations, exemplary damages could be recovered, but in this action plaintiff was only entitled to compensation for his loss.

Judge Bapallo, in Baker v. Drake, 53 N. Y., 211, says: “In civil actions the law awards to the party injured a just indemnity for the wrong which has been done to him, and no more, whether the action be on contract or in tort; except in those special cases where punitory damages are allowed, the inquiry must always be what is an adequate indemnity to the party injured, and the answer to that inquiry cannot be affected by the form of the action in which he seeks his remedy.” The case of Russell v. Butterfield, 21 Wend., 300, has never been questioned, and seems in point on the question before us for review. See also, Earl v. Camp, 16 Wend., 562, 571.

Judgment and order denying new trial reversed, and a new trial granted, on condition that the appellant pay the costs of the trial and of this appeal within twenty days.

Van Wyck, J., concurs.


source: Caselaw Access Project

author: Osborne, J.

license: Public Domain

text:
    Peter H. McNulty, Resp't, v. Charles Urban et al., App'lts.

      (City Court of Brooklyn,

      General Term,

      Filed December 29, 1892.)

      1. Evidence—Pabol to explain wbitten contbact.
    Defendants executed an authority to one L. to sell certain property, subject to mortgages aggregating $44,000, and tenant’s leases and no other encumbrance, for $45,750. Feld, that this did not mean that the property was to be sold for the sum named, leaving the premises still subject to the mortgages, but for the total consideration of the sum named, of which the mortgages were a part, and that if there was any ambiguity on that subject, paroi evidence was admissible to explain it.
    2. Appeal—Absence of findings.
    An appeal will not lie from a judgment or order entered upon decision of a demurrer where no decision of the court in writing is filed in accordance with § 1010 of the Code.
    Appeals from judgments in favor of plaintiff entered upon decision of the court.

      William J. Oaynor, for resp’t;

      Howard A. Sperry, for app’lts.
   Osborne, J.

This action was brought to compel the specific performance of a contract for the sale of certain premises on Fulton street, Brooklyn, alleged to have been made by one Lovett, as the agent of the defendant, Charles Urban, and thereto duly authorized.

The authority to make the contract in suit was as follows :

“ Brooklyn, December 26, 1891. I hereby authorize George E. Lovett, my agent, to sell the [sic] 231 and 233 Fulton street, running through to Liberty street, subject to mortgages aggregating $44,000, at five per cent, also subject to tenant’s leases, and subject to no other encumbrance, for the sum of $45,750, and I agree to pay him a brokerage of one per cent on that amount.

Charles Urban.”

The defendant, Charles Urban, answered, denying the making of the contract, and the defendant, Eliza Urban, demurred, on the ground that the complaint did not state facts sufficient to constitute a cause of action.

On a trial of the issues of fact, plaintiff had a judgment against the defendant, Charles Urban, directing specific performance, and permitting the plaintiff to deduct from the purchase money the value of the dower right of Mrs. Urban, in case she should not join in the conveyance.

So far as we can learn from the appeal book, the issues of law raised by the demurrer of the defendant, Mrs. Urban, seem to have been tried at the same time as the issues of fact, and another judgment was entered overruling the demurrer and directing that she unite with her husband in the conveyance of said real property “ to the extent of conveying her dower interest therein.” The defendants now appeal from the judgment entered against them, and notice is given “ that upon said appeal, Eliza Urban will review the order overruling her demurrer herein, the foundation of the judgment against her,”

So far as the judgment against the defendant, Charles Urban, goes, directing specific performance, we are of the opinion that it should be sustained. We think the.evidence was clear that the defendant, Urban, intended, by the paper writing above quoted, to make, and did make, Lovett his agent for the purpose of executing, on his behalf, a contract for the sale of the premises at the price named, as soon as Lovett could find a purchaser, and we think that the paper itself bears out that construction.”

The learned counsel for the appellants further contends that the fair construction of the authorization above quoted only empowered Lovett to make a contract for the sale of the premises for $45,750 cash, leaving the premises si ill subject to mortgages for $44,000, thus making the total actual consideration $89,750. We do not think that the authorization is to be thus construed, nor is that its fair import. But even conceding that the real meaning of the paper is ambiguous, the evidence introduced showed most clearly that defendant’s intention and desire was to sell the premises for a total consideration of $45,750, $44,000 of which was -in mortgages already on the property. That paroi evidence might be introduced to explain any ambiguity in the authorization is well settled, and the claim of the learned counsel for the appellant as to his construction of the authorization is a sufficient answer to his objections and exceptions to the admission of paroi testimony offered, not to vary or contradict the writing, but to show conclusively what was its real intention and meaning.

As to the appeal taken by the defendant, Eliza Urban, we think that it should be dismissed without costs. The practice as to the disposition of the demurrer served by her has been faulty. She, on this appeal, seeks to “ review the order overruling her demurrer herein, the foundation of the judgment against her.” No such order appears-in the appeal book, but we do find a separate judgment against her overruling her demurrer and directing that she unite with her husband in the conveyance to the plaintiff to the extent of conveying her dower interest therein. We thus have, in an equity suit, two separate final judgments, one of which directs the husband to make conveyance, and prescribing that if the wife does not convey her dower interest, then plaintiff may deduct its value, $250.80, from, the purchase price, while the other judgment overrules the wife’s demurrer and orders her to join in the conveyance to the extent of her dower interest There is no authority in the Code for any such practice. Fales v. Globe Knitting Co., 51 Hun, 487; 21 St. Rep., 708. Section 1010 provides that tire decision of the court in writing must be filed upon the trial of an issue of law, and § 1021 further provides that such decision must direct the final or interlocutory judgment to be entered. No decision in writing of the issues-of law raised by the demurrer has been filed, so far as the appeal book shows; we have nothing but a final judgment against Mrs. Urban, with apparently nothing to justify or support it. The case is, therefore, in such a position that we cannot consider her appeal. Village of Palmyra v. Wynkoop, 53 Hun, 82; 24 St. Rep., 824; Thompson v. Stanley, 29 Abb. N. C., 11.

Judgment against defendant, Charles Urban, is affirmed, with costs, and the appeal of the defendant, Eliza Urban, is dismissed, without costs.

Clement, Oh. J., concurs.


text:
    Ann Coyle, Adm'rx, Resp't, v. Daniel D. Mangam et al., App'lts.

      (City Court of Brooklyn,

      General Term,

      Filed January 25, 1893.)

    Master and servant—Negligence—Assumption op risks.
    Where a servant, with knowledge of the defects in an appliance furnished by the master, undertakes to use the same without objection or complaint, he assumes the risks of the employment incurred by reason of such defects, and no recovery can be had against the master for injuries sustained in consequence thereof.
    Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial on the minutes.

      Henri Pressprich, for resp’ts ;

      Jones & Crane, for app’lts.
   Osborne, J.

This action was brought to recover damages for alleged negligence in causing the death of plaintiff’s intestate. Plaintiff had a verdict, and this appeal is taken from the judgment entered thereon, and the order denying motion for a new trial.

The negligence with which defendants were charged, as alleged in the complaint, was “ that they furnished to him, deceased, and caused him to drive a defectively constructed truck,” from which deceased was thrown, “ owing to the defective construction of said truck,thereby sustaining injuries which caused his death. The complaint further alleged that said “ truck was unskillfully, negligently and wrongfully constructed, and was out of repair visibly and patently to defendant’s knowledge, * * * in many respects, and in that one of the wheels of said truck was larger than its mate,” and that decedent’s death was caused by such “ defective constructions and either of them.."

It appeared from the evidence adduced on behalf of the plaintiff that Michael Coyle, the deceased, had been employed for over ten years as a truck driver by the defendants, who were engaged in the hay and feed business. On September 16, 1891, which was the day that deceased received the injuries which caused his death, he was driving the truck in. question along Water street near Main street in this city, when, owing to a lurch of the truck, he fell or was thrown to the street, and received the injuries which caused his death.

One Whalen, a witness called on behalf of the plaintiff, testified that he had been a truck-driver in defendant’s employ for some time previous to the accident, knew this truck and had often driven it, that one of the hind wheels was about six inches smaller than the other, which made the track lean, or droop, more to the right than it did to the left, gave it a lurch; also, that the springs were out of order, so that one could see daylight through the leaves, and that he had “ lost two or three leaves at times.” This witness further testified that in December, 1890, he fell from this truck while driving it; that the cause of his falling was a lurch of the truck caused by his striking the car-track; that when he came back to work in May, 1891, he told Coyle that he had fallen from the truck, and that Coyle “ said he did’nt believe it was fit to run.” He also testified that Coyle had assisted in loading this truck several times, and that between the time he, Whalen, came back to work in May, 1891, and the time Coyle was hurt,, the truck was not fixed, that it was in the same condition when Coyle was hurt that it was when he was hurt. Another witness for the plaintiff, one Clifford, testified that he was on the comer of Water and Main streets and saw the track approaching, and also • saw Coyle fall from the truck; as he saw the truck coming, he said to a companion “ Here comes aduckety track ” * * * ‘When I say a duckety truck, I mean a truck where the springs is loose and one wheel being smaller than the other will make the body of the truck go shaky.” He further testified that one of the hind -wheels was about three or four inches smaller than the other, and that the laps of the springs were so loose that one “ could see the light right through them, and the earth ; ” that his first intention was to apply for the job of driving this truck, but when he saw the condition of the truck, he changed his mind.

At the close of the plaintiff’s case the learned counsel for the defendants moved to dismiss the complaint, upon the ground,' inter alla, that the complaint alleged, and the evidence showed, that the defects in the truck were visible and known to decedent. This motion was denied, and defendants duly excepted.

We are of the opinion that the motion to dismiss should have been granted, and that defendants’ exception to the refusal to dismiss was well taken.

It is well settled law that if a servant knows, or, by the exercise of ordinary observation, might know, that any appliance with which he is to labor is unsafe or unfit in any particular, and he continues in the employment without objection or complaint, he is deemed to have voluntarily assumed all the risks of the employment incurred by reason of any such defects, and cannot recover for any injuries he may sustain in consequence of such defects. This proposition has been so frequently enunciated that it is needless to cite the numerous authorities that go to support it.

It seems to us that the case made by the plaintiff comes within this rule. Deceased liad been working as a truckman for over ten years, and we may safely assume that with that long experience he had become fairly familiar with trucks and their construction ; he knew the truck in question; had frequently assisted in loading it; knew that his fellow servant, Whalen, had been thrown or fallen from it while driving it; had told Whalen that “ he didn’t believe it was fit to run,” and yet, without complaint or objection, he undertook to drive it. Not only does the complaint allege that the truck “ was out of repair visibly and patently,” but the witness Clifford also testified that, immediately on seeing the truck approaching him, he noticed the disparity in the size of the hind wheels which made “ the body of the truck go shaky,” and also that the leaves of the springs were loose and the light shone between them.

It is plain to us from the evidence that deceased was well aware of the defects in the truck, that they were plainly visible, and that he voluntarily assumed all the risks of driving it.

We are, therefore, of opinion that the judgment and order denying motion for new trial must be reversed, with costs to' abide the event.

Clement, Ch. J., concurs.


author: Clement, Ch. J.

text:
    D. Stryker Voorhees, Resp't, v. The Kings County Elevated Railroad Co., App'lt.

      (City Court of Brooklyn,

      General Term,

      Filed January 25, 1893.)

    Railroad—Negligence—Window of oar.
    It is the duty of a passenger before placing his hand or arm on the sill of an open window to see that it is raised to a sufficient height to be held by the catch, if in order; and the company is not liable for injuries-sustained thereby unless the catch is defective.
    Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial.

      W. W. Culver, for resp’t;

      Hirsh & Hasquin, for app’lt.
   Clement, Ch. J.

The plaintiff was a passenger on defendant’s train, and while seated placed his right arm on the sill of the open window, which suddenly fell and struck his little finger, whereby he sustained an injury. Plaintiff, on his direct examination, testified that he knew that the window, prior to its fall, was held by the catch, but on cross-examination admitted that he knew nothing about it, except that the window was up. It is just as probable that the window was not raised to the proper height as that the catch was defective. A passenger on an elevated car should either not place his hand on the window sill, or if he does, should look and see that the window is raised so that the catch rests upon the lip. The company, except in very warm weather, leaves it-to the passenger to determine whether the window shall be up or down, and a railroad employee is not bound to look, every time that a window is raised by a passenger, and see that it is put up to the proper height. We think that it was the duty of the plaintiff, before placing his hand under the window, to look and see that it was caught, and that the company was not negligent, unless the catch was defective, of which there was no proof in the case.

Judgment and order denying new trial reversed, and a new trial granted, with costs to appellant to abide the event.

Van Wyck, J., concurs.


author: Van Wyck, J.

text:
    James Brady, Resp't, v. Henry E. Valentine, App'lt.

      (Court of Brooklyn,

      General Term,

      Filed January 25, 1893.)

    New trial—Surprise.
    A new trial will not be granted on the ground of surprise at the absence of material witnesses at the trial, where the party knew of such absence while the trial was going on, took no steps to force their attendance, and made no request to withdraw a juror on that account.
    Appeal from order denying motion for a new trial on the ground of surprise.

      Goxe & Stratton {H. B. 'Hubbard, of counsel), for resp’t;

      Purrington & Shannon, for app’lt.
   Van Wyck, J.

We think the motion for new trial on the ground of surprise was properly denied. The alleged surprise was the absence of two witnesses at the trial. The defendant knew of their absence while the trial was going on, .and took no steps to force their attendance, though he had plenty of time for so doing after discovering their absence. He made no request of the court to be permitted to withdraw a juror on that account, but, on the contrary, he elected to go on and take his chances before that jury without their testimony, and he must .abide by his election. Hurlbert v. Parker, 5 St. Rep., 454; Soule v. Osterhoudt, 20 Week. Dig., 67; Foster v. Easton, 19 St. Rep., 447.

Order must be affirmed, with costs.

Osborne, J., concurs._


text:
    James Brady, Resp't, v. Henry B. Valentine, App'lt.

      (City Court of Brooklyn,

      General Term,

      Filed January 25, 1893.)

    Landlord and tenant—Tenement House—Negligence.
    Defendant was the owner of a tenement house, the banister of the second flight of stairs of which was out of repair, and the second step worn so as to be liable to break off, of all which he had notice. Plaintiff, while visiting his sister, who was a tenant, put his foot on this step, which broke,and he caught the banister,which broke and threw him down stairs. Held, that the jury were justified in finding that his injuries were caused by negligence of defendant and without contributory negligence on his part.
    Appeal from judgment in favor of plaintiff, entered on verdict ior $5,500, and from order denying motion to set aside the verdict and for a new trial.

      The defendant, on December 25, 1890, was the owner of a four-story tenement house, No. 253 North Sixth street, in the city of Brooklyn, and was still the owner thereof at the time of the trial of this action, on December 7, 1891.
    The house is a double tenement, occupied by several families.
    The sister of defendant, Mrs. Annie Sullivan, on December 25, 1890, occupied apartments in the fourth or upper st@rv of the building, the defendant reserving control and management of halls.
    The plaintiff, on the last named, day, went to dine with his sister at her said apartments, arriving there about one o’clock p. M.
    After dinner, and at about five o’clock, he left her apartments, and descended the first flight of stairs, lit up partially by the leaving open of the door o£ his sister’s apartments; but finding it very dark when he reached the top of the second flight, he called for a light, and Mrs. Gertrude J. Dana, who occupied rooms at the head of said second flight of stairs, opened her door, procured a lamp, and turned to go into the hall with the lamp, when she saw plaintiff fall to the bottom of the stairs.
    The fall was from the second step from the top of the stairs to the bottom.
    Plaintiff, when Mrs. Dana’s door was opened, started to descend the second flight of stairs, and when on the second step, which was in a worn condition, it gave way under him, and a piece broke from the edge, and plaintiff to save himself from .a fall seized the balustrade, which gave way, and the plaintiff fell to the foot of the stairs, striking upon his head, rendering him unconscious for five weeks, and he has since suffered great pain from the effects of the fall, and has been unable to perform his usual work, and the injuries are permanent to the right eye, and he is likely to lose the sight thereof; also a partial paralysis of the left side, and wasting of the left leg, and other serious permanent disabilities. Plaintiff was never sick, out of work or idle before that time, and subsequent to the injury has not been able to perform marital duties.
    The balustrade was weak and broken at the time of the accident. The defendant’s attention was called to the condition of these stairs ■ on Monday after Thanksgiving before the accident, by Mrs. Dana, one of his tenants, and upon her urging him to repair them, he replied “ he would not fix any more if the whole house fell down and broke their damned necks.”

      Goxe & Stratton (H. B. Hubbard, of counsel), for resp’t;

      Purring-ton & Shannon, for app’lt.
   Van Wyck, J.

It is established by the evidence, or can be fairly inferred therefrom, that the defendant owned the tenement house mentioned in the complaint; that the halls and stairs thereof were in his charge, care and control; that the banister of the second flight of stairs was badly out of repair, and the second step from the top of that flight had worn so thin as to render it liable to spring and break off under the pressure of the foot, all of which the defendant knew; that the plaintiff and his sister, a tenant in this house whom he was visiting, were not aware of such dangerous condition of this step and banister; that plaintiff, while coming down the stairs, put his foot on this step, which sprang and broke off under such pressure, and when he caught hold of the banister in an effort to save himself, it gave way to such an extent as to throw him down the stairs, inflicting upon him most serious injuries.

We think the court properly submitted the case to the jury, who were fully justified in finding that plaintiff’s injuries were caused by the negligence of defendant, and without contributory negligence of the former. Peil v. Reinhart, 127 N. Y., 381; 38 St. Rep., 913; Laws of 1888, chap. 583, tit. 14, § 26; Willy v. Mulledy, 78 N. Y., 310; McRickard v. Flint, 114 N. Y., 222; 23 St. Rep., 100.

We see no reason to disturb the verdict on the suggestion that, the weight of evidence is against it, or that the damages are excessive, for the suggestion, in both instances, is unfounded. Error cannot be predicated upon any of the other exceptions called to our attention.

Judgment and order must be affirmed, with costs.

Osborne, J., concurs.


text:
    Philip Engelhardt et al., Resp'ts, v. The City of Brooklyn, App'lt.

      (City Court of Brooklyn,

      General Term,

      Filed January 25, 1893.)

    Condemnation proceedings—Award—When it passes to grantee or MORTGAGEE OP OWNER.
    Certain land was condemned for street purposes and an award made therefor, but for many years thereafter nothing further was done. The owner in the meantime mortgaged the land, and the same was sold on foreclosure to plaintiffs’ grantor. Held, That under these circumstances the compensation when payable takes the place of the land, and the right thereto passed under the mortgage and became vested in the plaintiffs.
    Appeal from judgment in favor of plaintiffs.
    Action to recover an award.

      M. 0. Gross, for resp’t;

      Almet F. Jenlcs, for app’lt.

       Affirming 44 St. Rep., 474.

   Osborne, J.

On and prior to April 19, 1871, one Daniel Schaffer was the owner of certain premises on North Second street in this city. On said date; the legislature passed an act for the widening of North Second street, Laws of 1871, chap. 559. On January 2, 1874, said Schaffer mortgaged said premises to one Butler, to secure the payment of $2,250, and in February, 1877, he again mortgaged said premises to one Phillips to secure the payment of $5,000. By the report of the commissioners of estimate appointed under said act, which was not confirmed till November 9, 1876, said Schaffer was awarded the sum of $7,500 for his said property, the whole of which was taken for such widening, said property being designated in the commissioners’ report by the number thirty-nine (39). After the confirmation of said report, no further proceedings were taken by the city, or the property owners affected under said act, and their possession and enjoyment continued undisturbed.

In February, 1877, one Miller, the assignee of the Butler mortgage, foreclosed the same, making the holder of the Phillips mortgage a party to the proceedings, and on the sale under said foreclosure proceedings said Miller became the purchaser thereof. The said premises afterward, through several mesne conveyances, all containing full covenants of warranty, became the property of the plaintiffs by deed dated March 15, 1884, and they have ever since continued in the possession and occupation thereof.

They now bring this action to recover from the city the amount of said award, and also the taxes paid by them on said premises for the years 1884 to 1889, both inclusive. Plaintiffs "had judgment at special term for the amount of said award, but their claim for taxes was rejected. Defendant appeals from said judgment, substantially claiming that the premises in question were taken by virtue of said act, and an award was made therefor to Schaffer, the then owner, and that the right to said award did not pass by virtue of said foreclosure proceedings, and the sale_thereunder, and'the subsequent conveyances of said premises, especially in the absence of any covenants in the deeds referring to said award, and transferring the same, but that the right to said award at once accrued to the owner to whom it was made, and became his personal right or property.

We do not think that the contentions of the learned counsel for the city can be maintained. While it is true that the land in question was taken by force of the statute, and that the effect of the statute was constructively to deprive Schaffer of his said premises and commit the same to the city, still the burden was on the city to provide compensation for the land so taken. McCormack v. The City, 108 N. Y., 49; 12 St. Rep., 817. Both the city and the property owners seem to have acquiesced in the years of delay that followed the confirmation of the report of the commissioners ; they seem to have tacitly consented that nothing further should be done. Under these circumstances, we think that, till such compensation was made, the owner had the right to mortgage or convey the land, and any such mortgage or conveyance would have the effect of an equitable assignment of the award. When the compensation became payable, it took the place of, and was in lieu of the realty and was, in contemplation of law, realty ^ so far as the rights of grantees, mortgagees or other lienors were concerned. As was said in Bank of Auburn v. Roberts, 44 N. Y., 192, “ The sum awarded should be considered as land.” To hold differently would seriously affect all landed security, because all real estate is subject to the right of eminent domain, and any mortgagee who ádvances money in good faith on real estate as security might otherwise be deprived of his security by the exercise of the right of eminent domain, and be left with a personal claim only against his mortgagor.

Whatever interest Schaffer had in the award suosequently made him, by reason of the taking of his property, passed under the mortgage, for by it he conveyed, subject to the covenant of defeasance, not alone the premises in question, but"also all his “estate, right, title, interest, property, possession, claim and demand whatsoever, as well in law as in equity.” It will not be denied that Schaffer had the right to assign his claim for the award thereafter made, ánd we think that it was his plain intent to convey it by his mortgage; he raised money on his bond giving this mortgage to secure its repayment, and we are not justified in assuming that when he executed this mortgage he merely intended to give his creditor a nudum pactum, and to reserve to himself the award for the land that had. been taken.

We think this mortgage by Schaffer was equivalent to an equitable assignment of the award, and by it the mortgagee obtained an equitable lien on the damages awarded for the taking. Bank of Auburn v. Roberts, supra; In re Eleventh Avenue, 81 N.Y., 436; Utter v. Richmond, 112 id., 610; 21 St. Rep., 818. In this latter case, the court says, “No doctrine could be more clearly just than that when land is taken for public use, the damages awarded are to take the place of the land in respect to all the rights and interests which were dependent upon, and incident to it.”

Accordingly, when the mortgage by Schaffer to Miller was foreclosed, the purchaser under the foreclosure obtained all the rights that Schaffer had at the time of making the mortgage, including an equitable lien on the award, and the same passed by the sub- ■ sequent chain of conveyances to the plaintiffs.

Nor do we think that the mere fact that the award was made to Schaffer by the report of the commissioners is a bar to plaintiffs’ claim. If the city had paid the amount of such award to Schaffer in good faith, it might perhaps have been protected, but no such case is presented for our consideration. To hold that Schaffer or his assignee is entitled to the award in question, notwithstanding the mortgages he made on the property subsequent to the passage of the act, would be most inequitable. He mortgaged the premises in question for the sum in all of $7,250, thus realizing nearly the full value thereof, and it would be unconscionable now to permit him or his assignee to come in and claim the award of $7,500 in addition, thus realizing the value of his property twice over.

The learned counsel for the respondents, in his points submitted on this appeal, contends that the learned trial judge erred in disallowing the claim of the plaintiffs for the taxes paid by them on the premises in question. It is a sufficient answer to this claim that no exceptions were taken on behalf of the plaintiffs to the conclusions of the learned trial judge on that question, nor is there any notice of appeal therefrom. But even if the question were properly before us, we have no hesitation in saying that we should concur in his decision.

Judgment affirmed, with costs.

Yah Wyck, J., concurs.


text:
    Gustav Lindenkohl, App'lt, v. Charles Weber, Resp't.

      (City Court of Brooklyn,

      General Term,

      Filed February 4, 1893.)

    Replevin—Return op property—Damages.
    In an action of replevin it was found that defendant was the owner of the property. It appeared from the testimony of the sheriff that he put a man in charge for six days, in defendant’s saloon, when he was notified of a claim by chattel mortgagees and withdrew the man, leaving the goods in possession of defendant, who retained them until sold under the mortgage. Defendant’s wife testified that they had access to the saloon when they wished and that the sheriff did not interfere with them. Held, that there was no authority for a finding that the property was never returned to defendant, nor for a judgment for the value of the goods and damages for their detention.
    Appeal from judgment in favor of defendant for the value of the property and damages from its detention, in an action of replevin.

      Moffett & Kramer, for app’lt;

      Max HaWieimer, for resp’t.
   Osborne, J.

Plaintiff brought this action to recover the possession of certain personal property, consisting of the stock, fixtures and appurtenances of a lager "beer saloon, which he alleged were in his possession on February 12, 1892, and that, on that day, defendant unlawfully took said property from plaintiff’s possession, and detained the same. Defendant, by his answer, denied, plaintiff’s possession.

The evidence showed, inter alla, that, on February 10,1892, the defendant, being then the owner of said property, executed a bill of sale thereof to the plaintiff for an expressed consideration of $750, which plaintiff was to pay in cash, and $500 thereof was to be applied by defendant to discharging a chattel mortgage for that amount then on said property, held by Joseph Doelger’s Sons. Plaintiff paid $250 of said purchase money, and he claimed that, on making such payment, he was put in possession of said property by defendant, and that it was understood that he, plaintiff, was to take care of said mortgage. The basis of plaintiff’s claim that he was in possession of the property in question, and that defendant unlawfully took and detained the same, rests entirely on such rights as he obtained under this bill of sale. On the other hand, defendant claimed that he was not to surrender possession of the property till plaintiff had satisfied the chattel mortgage, that this was never done, and that he never gave possession to plaintiff.

The learned trial judge has found that it was not intended by defendant that the title to the property should pass to the plaintiff till the whole of said consideration of $750 was paid; that it never was paid, and that plaintiff never had possession or title to said property, but that defendant continued to be the owner thereof.

It further appeared from the evidence, and the learned trial judge has found, that the sheriff took possession of this property upon proceedings to replevin the same herein.

The learned trial judge has further found as follows:

“ Thirteenth. That said property was never returned to the defendant by the sheriff.

“ Fourteenth. The value of the said chattels is the sum of $300 mentioned in the complaint.

“Fifteenth. The damages of defendant for detention of said chattels are hereby fixed at $100.”

And as conclusion of law:

“Fourth. Defendant is entitled to judgment pursuant to § 1730 of the Code of Civil Procedure.”

On these, and other findings and conclusions, judgment was entered in favor of defendant, that he recover of the plaintiff the possession of the said property, or the sum of three hundred dollars, the value thereof, in case a return cannot be had, and also the sum of one hundred dollars damages, with costs.

The above mentioned findings and conclusion of law were duly excepted to by the appellant.

After a careful examniation of this case, we have come to the conclusion that the said thirteenth, fourteenth and fifteenth findings of fact, and the fourth conclusion of law are erroneous, and that the judgment mainly based thereon should not stand.

The evidence shows that, at or about the time of the commencement of this action, replevin papers were issued herein to the sheriff, under which he put a man in charge of the property ; that soon after, the holders of the chattel mortgage on said property notified the sheriff of their claim on the property, and that, thereupon, and after the sheriff’s keeper had been in charge of the property for five or six days, he was withdrawn, leaving defendant in full possession, and defendant’s possession continued undisturbed up to the time when the chattel mortgage was foreclosed and the property sold thereunder, which sale took place on the day before the trial of this action.

Cunningham, the deputy sheriff, testified that he took possession of the property under the writ of replevin on February 12. He says: “I kept possession five or six days, I guess. During the time I was in possession, there was a notice served upon me,” referring to the mortgagee’s claim. “ 1 withdrew my levy after I got this third party claim. * * * I gave Weber control of the chattels. * * * When I took possession of this place, I didn’t put Weber out; I merely put a keeper in there day and night, and when I got this notice of the third party claim, I withdrew my keeper. Mr. Weber got possession finally. Doelger’s Sons did not foreclose their mortgage at that time. I had no conversation with Mr. Weber. I simply withdrew my keeper. Before that time, I had my keeper there night and day. He was in possession in the ordinary way.”

Mrs. Weber, the wife of the defendant, testified “Mr. Lindenkohl never was put in possession of the place; we always was there; we lived there; had access to the saloon whenever we liked, and we are still in possession. I never was prevented by anyone from entering that saloon and going behind the counter. * * * I recollect the day that the sheriff took his men out, but not the date he left At the time he removed his levy and went out of possession of those things, I was in the saloon selling behind the bar, and I have remained there ever since. * * * The sheriff never took possession of the chattels from me. The sheriff left me there, and let me sell beer and liquors every day. He did’nt interfere with us at all. We have had possession of the fixtures ever since, up to the present time. I was in the store, and had charge of the back bar and everything in the store, up to to-day, and go in and out as I pleased."

We think that the above quoted evidence adduced on the part of the defendant, and which is uncontradicted, clearly shows that, while there may have been a taking by the sheriff, is was at most a constructive taking which did not interfere with the use and enjoyment of said property by the defendant, and that, on the sheriff withdrawing his keeper, the full possession was restored to the defendant, and he continued in possession thereof. Nor is there any evidence to show that defendant sustained any damage by reason of the detention of said chattels by or through the instrumentality of the plaintiff.

The chattels in question sold for $120 on the foreclosure of the Doelger mortgage, and that is the only evidence on the record as to their value.

As, however, we conclude that the thirteenth finding is not supported by the evidence, there is no basis for the fourth conclusion of law, and the judgment entered thereon cannot stand.

We think that the judgment should be reversed, and a new trial granted to appellant, with costs to abide the event, unless defendant stipulates that the judgment be re-settled and so modified as to provide only for a dismissal of the complaint on the merits, with costs. If such stipulation is given, the judgment as modified is affirmed, but without costs.

Clement, Ch. J., concurs.


author: Bookstaver, J.

text:
    Georgie French, Pl'ff, v. Jacob Vix et al., Def'ts.

      (New York Common Pleas,

      General Term,

      Filed February 6, 1893.)

    1. Nuisance—Blasting—Contractor.
    Defendants contracted to erect a house for plaintiffs neighbor,covenanting “ to become answerable and accountable for any damages that may be done to the property or person of any neighbor or passerby during the performance of said work”; and sublet the blasting to another. Plaintiff’s premises were injured by blasting performed by the subcontractor in a negligent manner. Held, that, as blasting is not per se injurious to person or property, unless conducted in a negligent manner, the defendants, Vix, were not liable in tort because the work had been done by an independent contractor.
    2. Same—Covenant op indemnity.
    Said defendants were not liable to plaintiff under their aforesaid covenant of indemnity, because there was no privity between plaintiff and defendants, and no consideration was paid to insure or indemnify plaintiff, said agreement being by its terms merely for the protection of the lot owner.
    Argument of exceptions directed to be heard in the first instance at the general term.

      Robert K Deyo, for def’ts
    Yix; William Henry Arnoux, for pl’ff.
   Bookstaver, J.

This case was tried at trial term and resulted in a verdict in favor of the plaintiff for $2,500, whereupon the trial judge ordered the exceptions to be heard at the general term in the first instance. On the trial it appeared that in May, 1889, the plaintiff was the owner of a house and lot on West 60th street, and that Nicholas Henry was the owner of a vacant lot immediately adjoining on the west. In that month Henry entered into a contract with the defendants Yix for the erection of a building on his lot. This contract contained, among other things, the following clause : “ And the said parties of the second part (Yix) further agree to become answerable arid accountable for any damages that may be done to the property or person of any neighbor or passerby during the performance of said work.” ■ It further appeared that the surface of Henry’s lot was covered with rock, and the defendants Yix made a sub-contract with the defendant, Dolan, a blaster, to excavate the earth and rock, which contained the following provision : “ The said Dolan hereby assumes all responsibility for any loss or damage which may occur to person or property while he or his employees are engaged in the performance of such work, and hereby agrees to save the said Jacob Yix & Son harmless from the payment of any such loss.”

Dolan commenced to work about the 25th May, 1889, and the first blast was on the 14th June in that year. In preparation for that blast Dolan’s workmen drilled a row of six holes within - five feet of the wall of plaintiff’s house, and two other rows, in all eighteen holes; this was done by machinery, and the holes were each eight feet .deep and four feet apart, the rows being the same distance apart. When this blast was let off it caused the ceiling in the hall and in every room in plaintiff’s house to fall; the stoop was knocked down; several stone banisters broken, the heavy newel posts separated from the stoop; the brown stone under the stoop was knocked out of place; also the iron door; four of the beams holding the basement floor were split; the heavy iron sewer pipe was broken; and other considerable damage done the building. After this the blasting continued, and other injury was done to plaintiff’s property. To recover for these injuries this action was brought against the Yixes and Dolan, the complaint alleging that Dolan was the agent of the Yixes, and that the Yixes by their contract with Henry had agreed to become and be accountable and personally responsible for any and all damages that might or should be done to the adjoining property by reason of the prosecution of the work, and that the rock was blasted in a negligent and unlawful manner, and that by reason thereof the damage was done. The answer of the Yixes denied that Dolan was their agent, or that they had any control over or knowledge of the manner in which the work was done,- and alleged that Dolan did the work as an independent contractor. He also interposed an answer, and was present on the trial, and sworn as a witness, but took no other part in the trial of the action, and was not represented by counsel. On the trial the court held “ that the stipulation in the agreement between Henry and the Yixes made the Yixes liable upon the ground that they were substantially indemnitors, and that from the principle of avoiding circuity of action a person might act at once against the person ultimately liable.”

The same view was taken on the motion to dismiss the complaint when the plaintiff rested. The court also held “ that no question of negligence or non-negligence is involved in the case and the jury was charged that “in any event you must find a verdict for the plaintiff," and “ they, the Yixes, are held accountable not because they did the injurious act, since, as I have already said, they did not do it, either themselves or by their own authorized agent or servant; and their liability constitutes a marked exception to the ordinary rule of law, which is that no man is responsible for an act which he did not do himself or by some agent or servant that he has constituted to do the act. The defendants Yix, therefore, are liable by virtue of an arbitrary rule of law, namely, having signed this- stipulation by which they agreed with Mr. Henry, the owner of the lot upon which the blasting was to be done, to be 1 answerable and accountable ’ for the damages, that, therefore, only the defendants are responsible.”

We think the ground assumed by the learned judge in this case at the trial term is untenable. If the Yixes were indemnitors, they were only such as to Mr. Henry, the only person with whom they contracted, as it must be assumed from an' inspection of the contract that he only contracted on his own behalf and for his own security and to relieve himself from all liability to others by reason of any of the work done upon his premises. In fact this was conceded by the court below, for the only circuity of action possible is that the plaintiff should first sue Henry, and if she recovered, Henry might have an action over against the Yixes for the amount he was compelled to pay her. It follows that the plaintiff cannot recover against the Yixes unless she had a right of action against Henry. To hold otherwise is to say that the stipulation in the contract was inserted by Henry not to protect him from claims which he supposed could be enforced against him, but so that “ any neighbor or passer-by " might have a right of action against the Yixes in cases where such persons could not have a ■ right of action against him, and this irrespective of the question of whether the damage was lawfully or unlawfully done, for the clause is not restricted. The question then resolves itself into this: Were the acts complained of such as would authorize a recovery against Henry, provided the work had been done by the Yixes themselves under the contract they had made with Henry? In other words, would Henry be protected from liability under the rule of respondent superior ?

This, in turn, depends upon the answer to another question: Did the damage necessarily result from the nature of the work itself, or did it result from the manner in which the work was performed ? If the work done was bound to produce the result, the person for whose benefit the work is done cannot shield himself by showing that the work was done by an independent contractor. Dorrity v. Rapp, 72 N. Y., 307. But if it resulted from the method in which the work was done, the person benefited having no control over such method, or of the persons pursuing it, then the contractor is solely liable. These are elementary principles, and so firmly established that they need no citation of authority to sustain them. It remains, then, to be determined whether work of which blasting forms an essential part is dangerous in itself, or whether it is devoid of danger unless improper methods are used in the employment of it. The tendency of courts in this state at first was toward the view that it was inherently dangerous, and that a person employing another to do such work would be responsible for injuries arising therefrom without showing negligence on his part But the later decisions all tend to hold that blasting is not dangerous in itself, and we think that view is now firmly established by the courts of this state. Blake v. Ferris, 5 N. Y., 48; Pack v. Mayor, 8 id., 222; Kelly v. Mayor, 11 id., 432; Herrington v. Lansingburgh, 110 id., 145; 17 St. Rep., 92. In the latter case the facts were that defendant entered into a contract for the construction of a sewer in one of its streets. The contract provided that all damage done in the construction should be paid by the contractors; plaintiff’s team, which was standing in a street-crossing, the one in which the sewer was being constructed, was frightened by the noise of a blast fired by the contractors in the prosecution of the work, and while attempting to control the horses, plaintiff was injured; held, that the defendant was not liable; that if there was any culpable negligence which caused the injury, it was that of the contractors and they alone were responsible; and Judge Earl, in the course of the opinion, says: “The accident was in no way caused by any imperfect condition of the street, but simply by noise resulting from the blast. If there was any culpable carelessness which caused the injury to the plaintiff, it was that of the contractors. They had entire control of the work and the manner of its performance. They could choose their own time for firing the blast, and select their own agents and instrumentalities. They could make the charges of powder large or small, and they could in some degree smother the blasts so as to prevent falling rocks and much of the noise of the explosion; or they could carelessly omit all precautions, and for the consequences of their negligence they alone would be responsible. If it were a prudent -thing to notify persons in the vicinity of the blast before it was -fired, then the contractors should have given notice; but the duty to give it did not devolve upon the village, and for these conclusions the cases of Pack v. Mayor, 8 N. Y., 222; Kelly v. Mayor, 11 id., 432, and McCafferty v. Spuyten Duyvil, etc., R. R. Co., 61 id., 178, are ample authority. It is 'conceded by the learned counsel for the plaintiff that if the plaintiff had been hit by a fragment of rock thrown by the blast, the defendant would not have been and the contractors would alone have been responsible. So, too, if a fragment of rock had struck one of the horses, or had fallen or passed near them, and this had frightened them causing the injury to the plaintiff, within the authorities cited, the defendant would not have been responsible. * * * A rule which would cast responsibility upon the defendant for injuries resulting from the noise of the explosion and exempt it from responsibility for injuries caused by fragments of rock thrown by the explosion, would rest upon no rational basis and require distinctions too fine for the practical administration of justice.” See also Brennan v. Gellick, N. Y. Law Journal, April 29, 1892. These authorities all establish that blasting rock does not necessarily cause injury, and that damage arising therefrom is solely the result of employing it negligently, and that when the work is done by an independent contractor, he only is responsible for such damage. In other words, it seems to be the settled law of the courts of this state that they will take judicial notice that blasting is not injurious to persons or property per se, or unless conducted in a negligent manner. That it was negligently done in this case by the sub-contractor, Dolan, is apparent from the number, depth and proximity of the holes drilled to each other and to plaintiff’s premises and their simultaneous discharge.

The force developed must have been terrific, and one is not surprised at the injuries resulting to plaintiff’s premises. But all these matters were under the control of the sub-contractor Dolan, and not of Henry or even the Yixes. The court below in its rulings followed Water Co. v. Ware, 16 Wall., 566, where many of the facts were similar to those now under consideration. But this case was decided on a principle which cannot be applied to the contract of a private person. It held that where a water company had agreed with a municipal ■ corporation to be responsible for damages while laying water pipes in the street, a party injured by the negligence of those doing the work could recover against the water company. The water company was held liable in a suit by the person injured, because the municipality was also liable, on the ground that, being charged with the control of the streets, they must keep them in a safe condition for travel, that the agreement with the water company would not acquit the municipality of an obligation, otherwise attaching, to keep the streets safe and convenient for travelers, and that the person injured might sue the water company because it might well be held that a party injured through a defect or want of repair in such a street, occasioned by the neglect or carelessness of such a contractor in doing the work, or of those for whose acts he is responsible, may, at his election, sue the contractor for redress, or pursue his remedy against the municipality, as it is clear that the contractor, in case of a recovery against the latter, would be answerable to the municipality as stated in his agreement This is a very different case from the one at bar. In this case Henry, for whose benefit the work was done, did not owe any duty to third persons in reference to it unless he undertook to do fit himself, as. shown by the cases before cited, but the city of St. Paul, as a municipality was charged with the duty of keeping its streets safe for those using them, and it did not have the power to make a contract by which others assumed to perform a part of the functions imposed upon it by law so as to relieve it, but as the city had been indemnified against damage caused by those who so assumed, the person injured could sue the indemnitor direct, for, if the suit was brought against the city and a recovery had, the city could in turn recover the amount from its indemnitor. But this would involve two suits, whereas the same object could be accomplished without prejudice to the indemnitor in one suit, brought by the person injured, against the contractor direct, thus avoiding circuity of action.

The rule that municipalities cannot by contract shift the duties imposed upon them by statute upon those assuming to contract with them for that purpose, is fully recognized in this State. Storrs v. Utica, 17 N. Y., 104, cited in Water Co. v. Ware; Brusso v. Buffalo, 90 N. Y., 679. The head note in Water Company v. Ware, supra, is misleading. It seems to assert the broad proposition that in all cases where indemnity has been given the indem-, nitor may be pursued in the first instance by a person injured; which, as before shown, was not decided by the court, but is authority only for the proposition that when a contractor is engaged in performing work, in which an injury is done, for which the person or corporation with whom he contracted is liable, then if the contractor has indemnified such person or corporation the person injured may sue the contractor direct on the principle of avoiding circuity of action. But the cases we have before cited from the highest court of this state are abundant authority for holding that where the accident is caused by blasting, there would be no liability even of a municipality, and a fortiori there could be no liability of a person not charged with a special duty, always assuming that the work was done by an independent contractor. It follows that to sustain the rulings of the court below it must be held that the Yixes are liable to the plaintiff in a case where the owner could not be held responsible by her. Such liability existing, not by virtue of anything inherent in the nature of the work, but solely by reason of a stipulation between the owner and the contractor, to which she was not privy and concerning which it does not appear that she had any knowledge before the damage was done. It is self-evident that if the work was such that Henry would not be liable if performed by his contractor, then the same rule would protect the Yixes on their sub-contract, where a similar provision was inserted in their contract with Dolan, who did the work as an independent sub-contractor. Slater v. Mersereau, 64 N. Y., 138.

The,case of Storrs v. Utica, supra, is the only one in any way in conflict with the foregoing reasoning, and that, we think, has been entirely overruled or greatly modified by the court of appeals in Charlock v. Freel, 125 N. Y., 357; 34 St. Rep., 971. But assuming that Water Co. v. Ware does establish that Henry was liable to the plaintiff, and that she could, therefore, sue the Yixes direct because liable over to Henry, still the plaintiff ought not to succeed here, for she did not bring herself within the conditions laid down in that case. There the gravamen of the action was negligence, and the fact that the jury found that there was negligence permeates the whole opinion. Here, although the plaintiff had alleged that the Yixes were liable solely because of negligence, the court expressly held that she was entitled to recover without showing such negligence.

The plaintiff's theory that the defendants are insurers has no countenance from Water Co. v. Ware, supra. If the defendants were insurers of Mrs. French, then she was insured as to her own property without her knowledge by Henry, who did not act as her agent, and who had no insurable interest of his own in her property. A contract of insurance by a person having no interest would be void as a wager policy. Again, no consideration was paid by Henry to the Yixes for the insurance of Mrs. French. All that he desired was, to have a building erected in accordance with the specifications, and to be secured from any damages either in contesting or otherwise disposing of any claim for damages arising out of the work. The consideration paid by him to the Yixes was for this, and nothing more. The preceding part of the contract, in which the stipulation under consideration occurs, shows that the only person sought to be protected by that contract was Henry himself; his sole aim was that he should not be called upon to pay such damages, and the Yixes did not by that contract estop themselves from asserting that a claim was not valid against them on the ground that Henry could not be compelled to pay if Mrs. French sued him.

Plaintiff also claims that in McMahon v. Second Avenue R. R. Co., 75 N. Y., 231, the defendant was held liable under a contract. We think the learned counsel has fallen into an error in respect to this case. The defendant was sued in negligence. A contract was offered in evidence and it was proved that the defendant had been negligent in the discharge of its duties under that contract; and so the court held that “ The reception of the agreement in evidence did not change the cause of action from one arising in tort to one based upon contract.” In the case under consideration the recovery was had on the contract alone, without proof of negligence thereunder, although the complaint alleged that the cause of action arose through negligence under a contract

Little v. Banks, 85 N. Y., 258, cited by the learned counsel for the plaintiff, is not in point in this case. There, the contract was made by a state officer with a bookseller, and the point of the decision was that the action could be maintained by Little on a contract made between Banks and the State, where the officers enter into it for the advantage and welfare of the public, and where such a provision constitutes a material portion of the agreement which is essential to carry it into effect. The contract between Henry and the Yixes was not made by Henry as a public officer for the welfare of the public, but as a private individual for his own benefit, and the stipulation as to damages was.not a material portion of the agreement which is essential to carry it into effect.

In Todd v. Weber, 95 N. Y., 181, the foundation of the liability was that “ The natural obligation arising out of his relation to the child is a sufficient consideration for a contract on his part to pay for its support and maintenance.” But Henry owed no obligation to the plaintiff or any other neighbor or passer-by, and nothing in Henry’s relations with the plaintiff constituted a consideration as between them that entitled her to any benefit in the stipulation.Besides, in Todd v. Weber the promise was made to do a specific thing for a specific person. But the stipulation in the case at bar is for the benefit of Henry alone, or else must be for the benefit of the whole world. In Rector v. Teed, 120 N. Y., 583; 31 St. Rep., 908, there was a promise on consideration to pay a specific sum to a specific person. The court says: “ A party for whose benefit a promise was made may sue in assumpsit thereon, even if the consideration therefor arose between the promisor and a third person.” But in this case, as far as we can perceive, there was no consideration from Henry to the Yixes for a stipulation inuring to the benefit of third persons. Henry wanted a house built, and he agreed with the Yixes to pay a certain sum for having it built; that sum was the consideration for the building of the house, and, incidentally, to save Henry harmless from any claim in connection therewith. In Vrooman v. Turner, 69 N. Y., 280, the rule is laid down, “ To enable a third party to enforce a promise, there must be privity by substitution between the parties, or some prior right or claim against one of the contracting parties, by which he had a legal interest in the performance of the agreement.”

We, therefore, think that the court erred in withdrawing the question of negligence from the jury, and in holding that, without any proof of such negligence, the Yixes were liable. The verdict of the jury should, therefore, be set aside, and a new trial ordered, with costs to the defendants Yix to abide the event

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


text:
    Edward Duffy, Resp't, v. John Dawson, Def't. Cornelius S. Evans et al, Appl'ts, v. John Dawson, Def't.

      (New York Common Pleas,

      General Term,

      Filed February 6, 1893.)

      1. Execution.
    Choses in action are not the subject of levy under execution.
    2. Same—Priority-Rights op creditors who institute supplementary PROCEEDINGS.
    The service of an order in supplementary proceedings under §§ 2441, 2446 and 2447 of the Code, gives the judgment creditor the priority of a vigilant creditor, and a lien upon the equitable assets of his debtor.
    Appeal from an order of the general term of the city court, reversing an order of the special term- in supplemental proceedings.

      A. Edward Woodruff, for app’lts ;

      Edward W. S.-Johnston, for resp’t

       Affirming 46 St. Rep., 268.

   Bookstaver, J.

A clear understanding of the facts in this-case is necessary in order to the solution of the questions raised on this appeal. From, the papers it appears that Duffy was at onetime the owner of a liquor store on the southeast corner of 104th street and Third avenue in this city ; that the same was purchased of him by the judgment debtor, Dawson; that in part payment for that purchase he gave the plaintiff Duffy a promissory note for $400; before that note was paid, Dawson sold the store to Thomas Barry ; at the time of the last sale, December 16, 1891, this note was unpaid and was disputed by Dawson, who claimed that it was not given for a valuable consideration ; thereupon it was arranged between Barry, the purchaser, and Dawson, the seller, and Duffy,the claimant, that the sum of $400, part of the purchase money on the last sale, should be placed in the hands of one C. L. Peetsch to be paid to Dawson on January 16, 1892, if no liens or claims-should be made against the store; at the same time Duffy gave notice to Barry that he had this claim against the $400 for a part of the purchase money of the store; Duffy thereafter, and on the 13th January, 1892, commenced his action against Dawson to recover the amount of the promissory note before mentioned; in that action Dawson was represented by Mr. Woodruff as his attorney, and such proceedings were had therein that on the 2nd February, 1892, judgment was entered on the verdict of a jury in favor of the plaintiff and against the defendant for the sum of $540.84; on the 3d February, 1892, one of the justices of the city court granted an order directing Peetsch to appear on February 6, 1892, to be examined as a witness in supplemental proceedings, and in that proceeding he was examined; on the 23rd February, 1892, another justice of said court ordered Peetsch immediately after the personal service upon him of that order, to pay the $400-in question to the sheriff of the city and county of Flew York, to be applied upon Duffy’s execution, which order Peetsch obeyed and paid the money to the sheriff. Meanwhile, and on or about the 22nd day of December, 1891, O. H. Evans & Sons, by Mr. Woodruff, commenced an action against Dawson to recover an indebtedness of $183, for goods sold and delivered; Dawson did not appear in that action and judgment was entered by default on January 29, 1892, for the sum of $177.62, and execution was issued thereon to the sheriff on the same day with directions to levy upon the $400 in the hands of Peetsch. During the pendency of the latter action and on the 31st December, 1891, Evans received from Dawson an order upon Peetsch for him to pay Evans out of the $400 held by him the sum of $125, which was duly served on Peetsch on or about the same day. These facts havingcome to the knowledge of the sheriff, be refused to apply the money received by him under the order of February 23, 1892, upon the Duffy execution. Duffy then moved the court upon notice to Evans and the sheriff for an order requiring the latter to pay the $400 in question upon his execution pursuant to the requirements of the order of the 23rd February. Upon the hearing of that motion the justice sitting at special term refused to grant it, on the ground, as stated in the order, that the court was of the opinion it had no power to grant the same; which, we think, was not an exact statement of the reason for his refusal, which was rather, as appears from the case, that he thought in a case where there was a dispute as to the title of the property he ought not to grant the order. From this part of the order Duffy appealed to the general term of the city court, where the order was reversed, and the sheriff was again directed to pay the $400 to Duffy; and it is from this order that the appeal to this court is taken.

'It is undoubtedly true that where there is a controversy as to the title to property in the hands of a third person, he will not be ordered to deliver it over to the judgment creditor. In re Western National Bank, Law Journal, April 9, 1892; Frost v. Craig, 16 Daly, 107; 30 St. Rep., 848; Barnard v. Kobbe, 3 Daly, 373; Rodman v. Henry, 17 N. Y., 482; Schrauth v. Dry Dock Savings Bank, 86 id., 390; West Side Bank v. Pugsley, 47 id.. 368; Teller v. Randall, 26 How., 155; Roy v. Baucus, 43 Barb., 310. And the first question in this case is whether there is such a controversy in relation to the title to the money in question.

All the facts in the case are before us, and on these facts we think questions of law only arise, which may properly be determined on a motion where all the parties interested are in court. There is no dispute of the fact that the money was deposited with Peetsch by consent of Duffy, Barry and Dawson, to meet any claim or lien that might be made against the store before the 16th of January, 1892. Duffy immediately on the deposit of the money made a claim for the whole amount, and it was principally on account of this claim that the money was deposited. There is no doubt but that the order given by Dawson on Peetsch to pay Evans $125 was sufficient to convey a title to the same to Evans, and operated as an equitable assignment of the same provided Dawson at the time had the right to give such order, and Peetsch was under obligation to accept it. Lauer v. Dunn, 115 N. Y., 405; 26 St. Rep., 412; Brill v. Tuttle, 81 N. Y., 454; Throop Grain Cleaner Co. v. Smith, 110 id., 83; 16 St. Rep., 831; Fairbanks v. Sargent, 104 N. Y., 108; 5 St. Rep., 531; Holmes v. Evans, 129 N. Y., 140; 41 St. Rep., 365; Gunther v. Darmstadt, 14 Daly, 368; 13 St. Rep., 145; People v. Comptroller, 77 N. Y., 45; Schmittler v. Simon, 101 id., 554. And it has been held that a formal acceptance of such an order was not necessary in order to make it binding, but that notice of the same was sufficient. Williams v. Edison Electric Illuminating Co., 43 St. Rep., 126; People v. Comptroller, supra. But in this case the money was deposited with Peetsch upon a special understanding between Duffy, Barry and Dawson, that it should be held until the 16th January, for a special purpose; and Dawson without the consent of the parties interested in the fund could not divert it from that purpose by any order which he might give for the payment of a part of it to a third party; and Duffy had before that time made a claim for the whole of it. The order, we think, cannot avail Evans in this controversy.

But it is claimed that Evans & Sons had a first lien on the money by reason of their prior execution. • This would undoubtedly be true if the specific money consisted of bills or coin deposited by Barry with Peetsch and was kept intact and thus capable ■of actual manual seizure. In N. Y. Life Ins. Co. v. Mayer, 14 Daly, 318; 12 St. Rep., 119, referring to execution liens, we held, as between creditors this charge or lien attaches to personal property at the time an execution on the judgment is issued to the ••sheriff for service, so that if the j unior creditor issues the first execution he takes priority as to personal property over all senior •creditors, and when the sheriff makes an actual levy on the debt- or’s goods and chattels, the lien becomes complete against all the world, including a subsequent purchaser in good faith. See also Lambert v. Paulding, 18 Johns., 311; Roth v. Wells, 29 N. Y., 471; Williams v. Shelly, 37 N. Y., 375; In re Dawson, 110 N. Y., 114; 16 St. Rep. 844. But in this case there is nothing to show "that the $400 deposited with Peetsch was in bills, coin, check or ■otherwise; nor is there anything to show that the specific money or coin, if it were paid in money or coin, was kept apart from •other money so that it could be levied upon by the sheriff; and it ■does not appear that any levy was ever made upon it. The court below, and, we think, properly, has regarded it all the way through .as a chose in action. Choses in action in this state have never been the subject of levy ■ under execution. Ransom v. Miner, 3 Sandf., 692; Ingalls v. Lord, 1 Cow, 240; Denton v. Livingston, 9 Johns., 96; Carroll v. Cone, 40 Barb., 220; aff’d, 41 N. Y., 216. Sickles v. Sullivan, 47 St. Rep., 82, is not in conflict with these .authorities, for that case decided that under § 1405 of the Code the execution bound property from the time of its delivery to the. ■■sheriff to be executed, and if the goods were sold subsequently by a person authorized to do so, it followed the equity of the judgment debtor in the pledged chattels, and attached to the surplus .arising from the sale and remaining in the hands of the pledgee. That was because the lien attached to the pledged goods at the "time of the delivery and hence followed the proceeds of them; which is entirely different from holding that an execution may be levied upon a chose in action.

On the other hand supplemental proceedings are in lieu of "the •old creditor’s bill and in Lynch v. Johnson, 48 N. Y. 33, it was held that “ proceedings under §§ 292 and 294 of the old Code,” which were similar in all respects with §§ 2441, 2446 and 2447 •of the present Code, were parts of the same scheme for the collection of debts inaugurated by the Code, and that these sections ■furnished a simple substitute for the creditor’s bill as formerly used in chancery, and that the commencement of the creditor’s •suit in chancery gave the creditor at once a lien upon the equitable assets of the judgment debtor. He was rewarded as a vigilant creditor, the commencement of his suit being regarded as an actual levy upon the equitable assets of the debtor. Under §§ :292 and 294, the service of the order takes the place of the commencement of the suit under the old system, and should give the judgment creditor the priority of a vigilant creditor, and a lien upon the equitable assets of his debtor.” Citing Storm v. Waddell, 2 Sandf. Ch., 494; Brown v. Nichols, 42 N. Y., 26. See, also, McCorkle v. Herrman, 117 id., 297; 27 St. Rep., 333; Barnes v. Morgan, 3 Hun, 705; Bevans v. Pierce, 1 City Court Rep., 259; the latter of which was in the city court and' is almost upon all fours with this case.

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

Bischoff and Pryor, JJ., concur.


author: Pryor, J. Bischoff, J.

text:
    George N. Manchester et al., Resp'ts, v. Thomas C. Van Brunt, Impl'd, App'lt.

      (New York Common Pleas,

      General Term,

      Filed February 6, 1893.)

    Bills and notes—Protest—Notice by mail.
    In a proper case a deposit in the post office of a notice of dishonor, though accompanied with a direction to return if not delivered in ten days, is sufficient notice to charge an indorser.
    (Bischoef, J., dissents.)
    Appeal from judgment of the general term of the city court, affirming judgment on verdict.

      Alfred B. Cruilcshank, for app’lt;

      Sackett & Lang, for resp’ts.

       Affirming 46 St. Rep., 566

   Pryor, J.

To an action by the holder of a note against the indorser, the defendant pleads a discharge for default in notice of dishonor. The note being payable and the indorser resident in the city of New York, the plaintiff availed himself of the method of notice provided by statute; namely, by deposit in the post office. But, by indorsement on the envelope containing the protest, the postmaster was requested to return it to the plaintiff if not delivered within ten days; and the argument is that this direction defeated the effect of the deposit as a notice. We are of opinion that the contention is untenable.

The law never required actual notice to the indorser, but due diligence sufficed to charge him. Gawtry v. Doane, 51 N. Y., 84; Libby v. Adams, 32 Barb., 542. Proceeding on the presumption that a communication duly addressed and deposited in the post office will regularly reach its destination, Oregon Steamship Co. v. Otis, 100 N. Y., 446; Price v. McGoldrick, 2 Abb. N. C., 69, the statute prescribes that a notice of protest “ may be served ” by being so addressed and deposited. Hence, such deposit is the legal equivalent of notice. Ellis v. Bank, 40 Am. Dec., 63; Montgomery Co. Bk. v. Marsh, 7 N. Y., 481.

Yet, notwithstanding the literal terms of the statute, it may be assumed that were the deposit so conditioned and encumbered as to repel the presumption of delivery, it would not amount to notice. But such is not the present case. From the facilities and securities for the prompt delivery of mail matter in the city of New York, the inference is inevitable that ten days was ample time for the receipt of the notice by the defendant.

By the United States Revised Statutes, it is provided that aletter not called for within a given period shall be sent to the “ dead-letter ” department; and by § 3939, that, after thirty days,_ if the name and address of the writer be indorsed on the letter, it shall be returned to him. The state statute making a deposit in the post office equivalent to notice must have contemplated these provisions of Federal law ; and hence the inference that an absolute and unrestricted deposit is not a necessary condition of such notice.

By the Code, under certain circumstances, service of pleadings may be made bv mail; and the service is complete upon deposit in the postoffice^ although, in fact, the paper miscarry in the delivery. Jacobs v. Hooker, 1 Barb., 71; Crittenden v. Adams, 5 How., 310. In Gaffney v. Bigelow, 2 Abb. N. C., 311, the defendant deposited his answer in the postoffice, but with a direction to return it, “if not called for in five days.” An objection that this qualification of the deposit destroyed its effect as a legal service was overruled by a court consisting of Mullin, P. J., E. Darwin Smith and Gilbert, JJ. The authority is in point, and would control our decision, even were it supported by less satisfactory reasons.

Appellant assails the judgment again, on the ground that the defendant was discharged by an extension of time to the maker; but it appearing beyond doubt that the indulgence was gratuitous, the liability of the indorser in unaffected. Upon this point, nothing need be added to the argument of the city court, general term.

So far as the appeal invites a consideration of questions of fact, they are concluded before us by the determination of the court below.

In other exceptions we observe no feature of gravity.

J udgment affirmed, with costs.

Daly, Oh. J., concurs.

Bischoff, J.

(dissenting).—No appeal lies to this court from an order of the city court of New York which refuses a new trial, and we are, therefore, authorized to review the j udgment only upon due exception taken at the trial. Code Civ. Pro., § 3191; Wilmore v. Flack, 96 N. Y., 512; Smith v. Pryor, 16 Daly, 169; 30 St. Rep., 553.

At the close of the testimony for both parties, defendant’s counsel asked that a verdict be directed for defendant, and the exception taken to the denial of this motion presents error for which the judgment must be reversed.

In substance, the agreement of the indorser of a promissory note is that he will páy if the maker does not, provided that, at maturity, the note is duly presented for payment, and, if not paid, prompt notice of the fact given him. To charge him, it is incumbent upon the holder of the note, therefore, to show that the conditions upon which the indorser’s liability rests have been duly performed- If they have not, the indorser is discharged without regard to the question whether or not he has been harmed by the omission. Cayuga Co. Bank v. Warden, 1 N. Y., 413.

Before the statute which authorizes service of a notice of non-payment of a promissory note by deposit in the post-office was enacted, such service, if the indorser resided in the same-city or town where the note was in terms payable or legally presented, or had his place of business therein, could only be made by leaving the notice at the residence or place of business of the indorser. Van Vechten v. Pruyn, 13 N. Y., 549. Service by mail was ineffectual. Ransom v. Mack, 2 Hill, 587. By Laws of 1857, chap. 416, however, it is provided that “ Whenever the residence or place of business of the indorser of a promissory note * * * shall be in the city or town * * * where such promissory note * * * is payable, or legally presented for non-payment,. * * * all notices of non-payment may be served by depositing them, with the postage thereon prepaid, in the post-office of the city or town where such note * * * is payable, or legally presented for payment, * * * directed to the indorser or drawer at such city or town.” Thus was created a mode of technical or constructive service, theretofore unknown, and in derogation of the indorser’s common law right to insist upon actual notice. Hence the statute must be strictly construed. Sutherland on Statutory Constructions, § 400; McManus v. Gavin, 77 N. Y., 36.

It is to be observed that the statute makes the fact of deposit in the post-office notice to the indorser. Whether or not the indorser received the notice by transmission through the mail is, therefore, immaterial, and the presumption of receipt from the fact of mailing, which is allowable in some cases, Howard v. Daly, 61 N. Y., 362; Austin v. Holland, 69 id., 571; Oregon Steamship Co. v. Otis, 100 id., 446; Van Doren v. Liebman, 34 St. Rep., 752, is inapplicable to this. To say that the notice was deposited in the post-office, therefore received by the indorser, is peiitio principii: Was it deposited in the post-office ?•

When defendant requested that a verdict should be directed for him, it did not appear that any notice was attempted to be given him other than a notice which was enclosed in an envelope directed to defendant at his place of business, and dropped in one of the street mail boxes, postage prepaid. But this envelope also bore plaintiffs’ address, and a request from them to the postmaster to return the package if delivery thereof to the defendant was not effected within ten days; and by act of congress of June 8, 1872, U. S. Rev. St., title 46, chap. 7, § 3939, compliance with this request is made obligatory upon the federal postal authorities.

Thus the controlling question involved on defendant’s motion was not whether, or not, defendant had presumptively, or in fact, received the notice by transmission through the mail, but whether plaintiffs had performed the condition precedent to defendant’s liability and given him due notice of non-payment of the note at maturity. This, when the facts are not in dispute, or conflicting inferences cannot be drawn therefrom, presents a question of law which must be determined by the court. Lambert v. Ghiselin, 9 How., U. S., 552; Harris v. Robinson, 4 id., 336; Bank of Columbia v. Lawrence, 1 Pet., 578.

The motion assumed that the facts were as claimed for plaintiffs, and logically we are brought to consider the question whether, or not,' the mailing of the notice of- non-payment, indorsed as stated, constituted a deposit of it in the post-office within the meaning of chapter 416, Laws of 1857.

We are of the opinion that it did not. Obviously the statute contemplated that the indorser would have the advantage of all means to be employed by the federal government in its efforts to effect delivery of mailed matter. This can be done by absolute and unqualified surrender of the notice to the custody of the postal authorities. In view, however, of the latter’s duty to return it pursuant to the request therefor, the deposit of the notice to defendant for transmission became cancelled upon expiration of the time limited for delivery. Limitation of the authority to deliver in respect to time rescinded the notice upon expiration of that time; and if authoritative custody for the purpose of delivery by the postal authorities can, as in the present case, be limited to ten days, there is no apparently sufficient reason why it may not be to less time, or why other restrictions affecting the delivery may not be imposed, and so eventual delivery of the notice be altogether frustrated. A limitation of ten days may not seem of moment in those cities wherein delivery by mail is effected by means of carriers at frequent intervals during the day, but the statute extends to all cities and towns alike, throughout the state, and delivery in many of the towns is accomplished only upon call at the post office by the person to whom the mailed matter is addressed, or by some person on his behalf. Illness, absence from his usual abode or place of- business, or the inclemency of the season may prevent this, and thus the expiration of the time limited for the purposes of delivery may prevent the notice from coming to the indorser’s knowledge.

But, it may be urged, the legislature is presumed to have provided for service of the notice by deposit in the postoffice with reference to the federal laws, and as these authorize a deposit for delivery within a limited time, such a deposit was contemplated by and is within the statute. To this the answer is that the statute, which creates notice of non-payment to the indorser by deposit of it in the postoffice, was enacted in 1857, while the obligation of the postal authorities to return it upon expiration of the time limited by the sender for delivery was not imposed until June 8, 1872. Hence the statute could not have contemplated a limitation of the time for delivery of matter deposited in the postoffice; and it is the rule in the interpretation of statutes that if one statute incorporates or adopts another expressly or by implication, such incorporation or adoption extends only to the latter as it was at the time and does not include subsequent alterations or amendments. Bndlich on the Interpretation of Statutes, § 85, p. 115 ; Knapp v. City of Brooklyn, 97 N. Y., 520; Matter, etc., of Sing Sing, 98 id., 454.

We attach no importance to the testimony of Manchester, a witness for plaintiffs, to the effect that the notice was never returned to them, because, if the view entertained by us, that the notice was not deposited in the postoffice as required by the statute referred to iscorrect, then, as matter of course, the omission to give defendant notice of non-payment can in no sense be cured, because a notice of which service was intended was not returned.

Our conclusion is that there was a failure of proof sufficient to ■constitute a cause of action and that defendant’s motion for direction of a verdict should have been granted.

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

Judgment affirmed, with costs.