author: BISCHOFF, J.

text:
    Patrick Stanton et al., App'lts, v. August Cohler et al., Resp'ts.
    (Supreme Court, Appellate Term, First Dept.,
    Filed March 23, 1896.)
    1. District court—Jurisdiction.
    In an action to foreclose a lien under the Mechanics’ Lien Law, the district courts in the city of New York acquire jurisdiction of an executor or administrator defendant.
    2. Ai-peal—Several judgments.
    Where the judgment in favor of the defendants is several, and the notice of appeal is directed to one defendant only, the judgment in favor of the other defendant, where he does not participate in the appeal, will not be reviewed.
    Appeal from a judgment of dismissal of the complaint, rendered by a district court in the city of New York.
    George W. Stephens, for app’lts; Clarence D. W. Rogers, for resp’ts.
   BISCHOFF, J.

The questions which were argued upon this appeal are: (1) Whether or not, in an action to foreclose a lien claimed pursuant to the provisions of the mechanic’s lien law (chapter 342, Laws 1885), the district courts in the city of New York acquire jurisdiction of an executor or administrator defendant, it being urged for the appellants that, for the purposes of such an action, the previous inhibition of jurisdiction in actions against executors or administrators (Code Civ. Proc. §§ 2863, 3215; Risley v. Bank, 83 N. Y. 318, 337; Davidsburgh v. Insurance Co., 90 N. Y. 526, 530) was removed by section 9 of the mechanic’s lien law, which is as follows: “An action to foreclose a lien, provided for in this act, may be brought in a court of record, which would have jurisdiction to render a judgment in ani action upon a contract for a sum equal to the amount of the lien,” etc.; and (2) whether or not, by a notice filed after the death of his contractor, the sub-contractor may acquire a valid lien. The action was one in behalf of certain subcontractors against the owner of the premises and the administrator of the deceased contractor, to foreclose a lien, the amount of the alleged lien being less than $250. It was conceded that the notice of lien was filed after the decease of the contractor, and the court below thereupon directed the dismissal of the complaint with regard to both defendants; the grounds stated for such dismissal at the thne involving the negative of the questions above alluded to. The record, however, presents only the first of such questions for our consideration. Hothing in the mechanic’s lien law (Laws 1885, c. 342) evinces legislative intention, by authorizing the prosecution of an action to foreclose a lien in courts not of record, to remove the inhibition of subdivision 5 of section 2863 of the Code of'Civil Procedure (see, also, section 3215), and subdivision 3 of section 1286 of the consolidation act (chapter 410, Laws 1882), against the exercise of jurisdiction by the district courts in the city of New York in actions brought against an executor or administrator, as such. Such inhibition, therefore, being special and local in its operation, upon well-settled rules of statutory construction, prevails against the provisions of a general law with regard to which it is not plainly repugnant. Van Denburgh v. Greenbush, 66 N. Y. 1, 3; 23 Am. & Eng. Enc. Law, 422, and cases collated in note 3. It follows that the action was properly dismissed as against the defendant administrator. Obviously, the judgment appealed from was several with regard to the defendants. In so far as it proceeded from the want of jurisdiction it was in favor of the defendW Administrator, and rightfully rendered. He could not litigate the validity of the lien claimed in the court below; and, in so far as the judgment determined the lien to be invalid, it was in favor of the defendant owner. From the last-mentioned judgment no appeal appears to have been taken, the notice of appeal being directed to the defendant administrator only. The defendant owner did not, so far as appears from the record, participate in this appeal, and without an appeal from the judgment in his favor any inquiry on our part concerning the conclusion of the court below that the notice of lien filed was a nullity would involve the decision of a moot case,—a task which we are not bound to assume. Bartemeyer v. Iowa, 18 Wall. 129.

The judgment in favor of the defendant administrator and respondent is affirmed, with costs.

All concur.


source: Caselaw Access Project

author: DALY, P. J.

license: Public Domain

text:
    Francisco Sensone, App'lt, v. Williams A. Alexander et al., Resp'ts.
    (Supreme Court, Appellate Term, First Dept.,
    Filed March 23, 1896.)
    Negotiable Instrument — Order on Agent—Acceptance and Transfer.
    An order given by a landlord to an ag-ent for the collection of rent, directing him to pay to bearer rent due on a certain date, is an equitable assignment of such rent; and when the order is accepted by the agent, and transferred to a third party for value, it is irrevocable, and the holder has the right to recover upon it against, the acceptor.
    Appeal from a judgment in favor of defendants.
    The action was brought against the defendants as acceptors of the following statement:
    “Alexander & Alexander, Real Estate and Loans, 246 Fifth Ave-
    (Cor. 28th St.)
    “New York, July 24th, 1895.
    “My Dear Sir: Please pay to hearer the rent due August 24th, amounting to $38.00. _ . .. Laura V. Brewster.
    “We accept this Alexander & Alexander.”
    Pierre M. Brown, for app’lt; Russell Lord Tarbox, for resp’ts.
   DALY, P. J.

It can he inferred from the evidence that the-defendants were the agents of Mrs. Laura Y. Brewster to collect the rent mentioned in the order; that she drew the order in question, and gave it to her husband, who procured its acceptance by the defendants; that the plaintiff agreed, in her presence, to» advance the amounts to her husband, and received the draft from him; and, before discounting it, took it to the defendants, who-admitted their acceptance, and promised to pay the draft; whereupon plaintiff advanced the money to Mr. Brewster. Plaintiff' presented the draft at maturity, and was told that the rent had been collected and paid over, the day before to Mrs. Brewster-The trial judge dismissed the complaint, holding that Mrs. Brewster had the right to revoke the order, and collect the rent herself, and that defendants were hound to pay it to her, and-could not he held liable upon their acceptance. The plaintiff' contended that the order was an equitable assignment of the rents by Mrs. Brewster to the hearer and his transferee, and was irrevocable.

The position of the plaintiff was undoubtedly correct. The object of the order was to transfer the right to the accruing rents, and no more effective form of assignment could he devised than an order upon the collection agente to pay them over. When this order was accepted and delivered for value, the right to revoke it was gone. Munger v. Shannon, 61 N. Y. 251, was an action against the acceptor of the following instrument:

“Mr. Harrison Shannon: You will please pay to Messrs. Wilken & Hair the amount of a note for $2,000, dated December 31, 1868, and deduct the same from my share of the profits of our partnership business in malting. Note made by myself as principal to the order of myself, and indorsed by ¡Nathan ¡Randall and Herrick Hunger. [Signed] L. A. Gulick, per E. Gulick. January 26th, 1869. Indorsed: Accepted February 6th, 1869. H. Shannon..”

The court held that the paper was not a bill of exchange, but .was an equitable assignment of sufficient of the profits to pay the note, and was irrevocable as soon as assented to by the defendant, so far as to require him to appropriate the profits, if any, to its payment. That order was conditional upon the existence of profits, as the order in this case was conditional upon the collection of rents by the defendants, and the doctrine of the case fully sustains the claim of the plaintiff.

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

All concur.


text:
    Charlotte Cooper, Resp't, v. Agnes Tim et al., App'lt.
    (Supreme Court, Appellate Term, First Dept.,
    Filed March 23, 1896.)
    Principal and Agent—Liability op agent.
    If a person knowingly pays money to another as the .agent of a third party, and such payment is not induced by any wrongful act of such agent, resort cannot be had to him, but must be had to his principal, if the person who made the payment ultimately becomes entitled to the return of the money paid, though the agent may not yet have accounted to his principal therefor.
    Appeal from a judgment on a verdict in favor of plaintiff.
    John A. Straley, for app’lts; Joseph C. Rosenbaum, for resp’t.
   BISCHOFF, J.

The recovery below was contrary to law, and the judgment must therefore be reversed. ¡No cause of action against the defendants was apparent from the evidence. It is settled, in principle and by authority, that if one person knowingly pays money to another as the agent of a third, the payment not having been induced by any wrongful act of such agent, resort cannot be had to the latter, but must be had to his principal, if the person who made the payment ultimately became entitled to the return of the money paid; and this although the agent may not yet have accounted to his principal therefor. Colvin v. Holbrook, 2 N. Y. 126; Hall v. Lauderdale, 46 id. 70; 1 Am. & Eng. Enc. Law, 401.

The action was for money had and received to the use of the plaintiff, and the only fact in issue was with regard to the plaintiff’s contention that the sum paid by her was received by the defendants upon the condition that it was to be returned if the plaintiff’s colessee failed to pay a further sum. The facts in evidence were, therefore, that the plaintiff and one Mrs. Dawson applied to the defendants, who were real estate agents, doing business under the firm name of Tim & Co., for a lease of the premises 221 West Thirty-eighth street, in the city of New York; that the ensuing negotiations resulted in an oral understanding that a lease should issue upon payment by -the lessees of three hundred dollars, one •hundred and fifty dollars whereof were to be applied for the first month’s rent, and the remaining one hundred and fifty dollars to be held as security for the performance of the lessees’ covenants; that thereafter a lease in writing was formally executed by Robert Bicket, the owner of the premises, acting in this behalf through one Goldsmith, his attorney in fact, as lessor, and the plaintiff and Mrs. Dawson, as lessees; that, at the time of the execution of the lease, the plaintiff paid, and Tim & Co. received, two hundred .and fifty dollars, upon the condition that the lease should be ineffectual, and the money paid be returned to the plaintiff, unless Mrs. Dawson paid the remaining fifty dollars; that the last-mentioned sum was never paid; and that the plaintiff thereupon demanded of Tim & Co. the return of the sum paid hy her. Bailing of such return, this action was- instituted against Tim & Co. No fraud, deceit, or other wrongful act on the part of 'Tim &.Co. was charged or shown. Their authority as the agents of the lessor was undisputed, and that, at the time of the plaintiff’s payment of the money she sought to have returned, she knew Tim & Co. to be acting for and as the agents of the lessor,' was incontrovertible upon the facts.

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

All concur.


author: VAN BRUNT, P. J. BARRETT, J.

text:
    Henry Wilhelm, Resp't, v. Nathan Federgreen, App'lt.
    (Supreme Court, Appellate Division, First Dept.,
    Filed March 20, 1896.)
    1, Vendor and purchaser—Title,
    Questions of the nature of an adverse possession and the- sufficiency of its duration are always questions which are open for investigation and consideration, and a purchaser will not be compelled to take title where there are circumstances which may have prevented the possession from ripening into a title.
    3. Same.
    Parties are not required to complete a purchase where it appears that there is a reasonable objection to the title and no olear and satisfactory proof that such objection is without foundation.
    3. Same—Burden oe prooe.
    Where the vendor is claiming title because of special circumstances, he is called upon to show that these special circumstances gwe him a title, and it is not incumbent on the vendee to prove the negative.

      4. Same—Bepaibs.
    Where a vendee, under a contract to convey with warranty, commences repairs prior to the conveyance, but, when the question ol title came up, stopped and is induced to go on with the repairs by the vendor’s promise to pay for them if the title failed, the vendor, upon the failure of title, is bound to comply with such contract.
    Appeal from a judgment in favor of plaintiff and from an order denying a motion for a new trial.
    E. Kaufman, for app’lt; C. Blandy, for resp’t.
   VAN BRUNT, P. J.

The plaintiff sues as assignee of one Henry Holk, to recover damages for the failure on the part of the defendant to convey to said Holk a marketable title to premises, in the city of Hew York, contracted by the defendant to be cold to said Holk. It appeared upon the trial of the action that the premises in question had a building upon them which encroached by some two inches upon the adjoining lot. The vendee had gone into possession, and made certain repairs to the premises; and, upon the rejection of the title, the plaintiff brought this action to recover the deposit made under the contract and the value of the repairs, which it was claimed, in case the title was not perfect, the defendant had agreed to pay.

The facts disclosed upon the trial showed that on the 9th of May, 1891, the defendant and said Hoik made a contract for the purchase and sale of the premises in question, which consisted of a lot of land on the south side of Forty-eighth street, distant 300 feet easterly from the comer of Forty-eighth street and Second 'avenue, being 25 feet front and rear, and 100 feet 5 inches in depth. This lot was improved. The .purchase price was to be $16,000, $500 to be paid down upon the execution of the contract, and the further sum of $3,000 on the 1st of August, 1891, when the deed was to be delivered, and the balance of the purchase ■money to be paid by th assumption of two mortgages, amountipg to the sum of $12,500, then upon the premises. The vendor covenanted to give a title free and clear from all incumbrances except the lien of the two mortgages above mentioned, and, in case of his failure so to do, he agreed to forfeit all money paid on the contract as liquidated damages; the vendee to have possession of the premises on the 3rd of August, 1891, subject to existing liens, and in the meantime to have the privilege of repairing the premises if he did not molest tenants. On the 11th of May,-1891, a supplemental agreement was entered in, by which the vendee was permitted to take possession of the premises on that day, and was to pay the interest on the mortgages from that date, and all taxes, assessments, and repairs that might thereafter accrue or be made, and to have all the rents of the premises from that date until the execution and delivery of the deed. It appeared upon the part of the plaintiff that, after the contract and supplemental contract had been entered into, the vendee asked the defendant what would be the consequences if the defendant had not a clear title; and the defendant replied that there would be no danger about that,, and, if there was anything wrong with the title, he would be fully responsible. Upon a survey being made of the premises, it appeared that one of the walls of the building upon the front of the lot encroached two inches upon the adjoining lot. Certain negotiations were had between the vendor and vendee in respect to this matter, and the vendee testified that, near the 1st of August or the last of July, he saw the defendant, who promised to have it straightened out in the course of a couple of weeks, and the vendee agreed to postpone the closing of the sale for a month. In the latter part of August, he saw the defendant again, who said he was going to see a surveyor; that he had not been able to see the owner of the property, as he had not come in town yet. The vendor said: “What will I do about the repairs? Will I stop them, or go ahead? ” The defendant said: “No, go on, and if it cannot be straightened out, I will be responsible.” The vendee then continued making the repairs in question. On the 12th or 13th of September, the vendee saw the defendant again, and asked him if he had the encroachment business straightened out. The defendant said, “No,” that the lot next to him was willed to little children, and he could not do anything with it. Each party was prepared to carry out the contract so far as he was able under these circumstances.

The court, at the trial, upon these facts appearing, charged the jury that the defendant could not give a legal title; and, the values of these repairs having been agreed upon, a verdict was directed for the amount of the deposit and certain of the repairs. A motion was made for a new trial, which was denied. From the judgment and order thereupon entered, this appeal is taken.

There is no question raised in respect to the encroachment in question. But it is urged that, as the building has been erected more than twenty years, there has been adverse possession established, which has ripened into a title. It is undoubtedly true, as claimed upon the part of the defendant, that, whenever possession of sufficient duration is proved, the title of the possessor is as good as if conveyed by a deed. Baker v. Oakwood, 123 N. Y. 16; 33 St. Rep. 223. It does not seem to be necessary to cite authorities in order to establish that proposition. But the questions of the nature of the adverse possession and the sufficiency of its duration are always questions which are open for investigation and consideration; and the "purchaser will not be compelled to take title where there are circumstances which may have prevented the possession from ripening into a title. Shriver v. Shriver, 86 N. Y. 576. In the case cited, it was held that a purchaser will not be compelled to complete the purchase where there is some reasonable ground shown in support of an objection to the title, or where the title depends upon a matter of fact which is not capable of satisfactory proof, or, if capable of that proof, yet is not so proved. In the case at bar, in order that this adverse possession should; have ripened into a title, it was necessary to show that such possession was intended to he adverse, and, further, that the parties in whom the title to the premises claimed to be held adversely was vested were in such a condition that the statute of limitations ran, and the protection of the statute inured to the benefit of the adverse possessor. In the case at bar there was certainly no proof that the possession in question had ripened into a title, or that the statute had run, by showing that there were persons in being who could have asserted their rights, and who were bound so to do within the period of the occupation. On the contrary, it appeared .affirmatively by the-statement of the defendant that the reason he could not perfect his paper title was that the property had been willed to infants. It was clear, therefore, that the possession in question had not ripened into a title. Parties are not required to complete a purchase where it appears that there is a reasonable ¡objection to the title, and no clear and satisfactory proof that such •objection is without foundation. Under the circumstances shown, it seems to us that the learned judge who tried the cause was right :in holding that no such title as the purchaser was authorized to require was tendered to him in fulfillment of this contract.

It is urged upon the part of the appellant that the burden of proof was on the plaintiff to show that there were infants who had a better title to the property than the defendant, and that this the plaintiff absolutely failed to do. But it seems to us that, in this view of the case, the duties of the defendant were entirely misapprehended. He was claiming a title because of special circumstances, and he was therefore called upon to show that those .special circumstances gave him a title; and it was not incumbent .on the vendee to prove the negative. Even if such were the fact, ¡however, enough was shown by the admissions of the defendant to .require the ruling above named to have been made.

As to the claim for repairs, there was sufficient evidence to warrant the jury in finding an agreement upon the part of the defendant to pay for these repairs in case of a failure, of title. It is true -that the agreement of the 11th of May contemplated the vendor’s entry into possession of the premises as owner, and the making of repairs. But, when this question in regard to the title came .up, the defendant induced the vendee to go on with the repairs, .under the promise to pay for them if the title failed. The title having failed, he is bound to comply with his contract.

The judgment and order should be affirmed, with costs.

INGRAHAM and RUMSEY, JJ., concur.

BARRETT, J.

(dissenting). This is a case of the practical location of, and long acquiescence in, a boundary'line. Even admitting the two-inch encroachment, it does not parallel the entire length of the defendant’s lot. It commmenees with two inches, and lessens as the middle of the lot is approached. The line of the wall runs obliquely to the rear of the lot, until the encroachment entirely disappears, and finally the defendant’s wall is well within the survey line. The neighbor encroached upon has taken advantage of this deviation to build one and one-half inches on the defendant’s land in the rear of the premises, so that the encroachments are mutual. The doctrine of adverse possession need not be resorted to under such a state of facts. Here is a -building which has been standing for over twenty-five years just as it stands today. The owner may have lost the one and one-half inches in the rear by his neighbor’s adverse possession, and he may, by the application of the same rule, have gained the diminishing strip of from two inches to nothing in front. This may or may not be, according to the circumstances. But the question of title is settled by the rule with regard to the practical location of boundary lines. H there ever was a proper case for its application, it is one like the present, where a trivial deviation or deflection in the wall of a city building has lasted without objection for over twenty-five years.

It was held in Baldwin v. Brown, 16 N. Y. 359, that practical location and long acquiescence in a boundary line are conclusive, not upon the notion that they are evidence of a parol agreement establishing the line, but because they are themselves proof that the location is correct and of so controlling a nature as to preclude-evidence to the contrary. Selden, J., speaking for the court of ■appeals, there said:

“The abquiescence in such cases affords ground not merely for an inference of fact to go to the jury as evidence of an original parol agreement, but for a direct legal inference as to the true-boundary line. It is held to be proof of so conclusive a nature that the party is precluded from offering any evidence to the contrary. tlnl-ess the acquiescence has continued for a sufficient length of time to become thus conclusive, it is of no importance.. ■The rule seems to have been adopted as a rule of repose, with a view to the quieting of titles.”

The learned judge added that, if necessary to establish such a line, “the law will presume a conveyance in accordance with it.”' The practical location there was held to be decisive of the case, “without regard to the question whether the plaintiff’s claim was barred under the statute concerning adverse possession.”

This case was followed, and the language of Selden, J., quoted with approval, in Reed v. Farr, 35 N. Y. 113. The headnote correctly condenses the decision, as follows: '

“Practical location of a boundary line, and acquiescence therein for more than twenty years, is conclusive of the location of the boundary line. Such location and acquiescence is deemed conclusive on the ground that it is evidence of the correct location of so high a nature as admits of no contradiction.”

It is a rule, as was said by Miller, J., in Sherman v. Kane, 86 N. Y. 73, which “applies not only to cases of disputed boundary, but to those about which there can be no real question.”

Thus, the rule concludes the surveyor. But, even if it did not, the surveyor’s evidence here is far from satisfactory, even as fi> the encroachment upon-the frontage. He seems to have been employed to help the plaintiff’s assignor to break his contract. He .was asked this question, and gave this answer:

“Q. Wasn’t this a bulge in the wall, so that from the front the wall extended out two inches, and the bulge didn’t extend hack? 'A. I went there to look for technicalities, and I think I found it.”

At first he said he did not make the survey. That was made by his former partner, who was dead. He merely measured the frontage of the house, where he found the “technicality” of what may have been a two-inch encroachment, or a two-inch bulge. He reported accordingly, and his employer promptly rejected the title. This surveyor acknowledged, however, that the line showed that whoever occupied the house adjoining the rear of the defendant’s lot built over on that lot one and one-half inches. Thus, the parties on both sides of the hue acquiesced in the practical location of the defendant’s wall. To condemn a title upon such facts would be a serious inroad upon the rule of repose, and would limit the practical location doctrine to the strict conditions attaching to adverse possession. The former doctrine is quite as ■important to the quieting of city titles as it is with regard to farm ■lands. It has been applied in the country where the practical location has been fixed by a hedge fence or a row of trees. . It may well be applied with equal liberality where the boundary was originally fixed by the solid wall of a four-story house.

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

O’BRIEN, J., concurs with BARRETT, J.


author: O’BRIEN, J.

text:
    Elizabeth Canton, as Executrix, etc., Resp't, v. William Simpson, App'lts.
    (Supreme Court, Appellate Division, First Dept.,
    Filed March 20, 1896.)
    1. Negligence—Teams.
    A driver of a team is negligent where, when it is almost dark and necessary to keep a sharp lookout for pedestrians and for other vehicles, he approaches the . street crossings at a pace which prevents his being able, though he sees the possibility of danger, to avert it.
    3. Same—Contbibutoby negligence.
    Where a person crossing an avenue, finds his passage obstructed by a car and himself placed in a position of danger by an approaching wagon, and does what, seems to him best, under the circumstances, to avoid danger, he is not guilty of contributory negligence.
    Appeal from a judgment in favor of plaintiff, and from an order denying a motion for a new trial.
    Tallmadge W. Foster, for app’lt; Abel E. Blackmar, for resp’t.
   O’BRIEN, J.

The action was brought, under the statute, to recover damages for negligence causing-the death of plaintiff’s testator. The question of the defendant’s liability was submitted to the jury, which returned a verdict in favor of the plaintiff for $1,300; and it is from the judgment thereupon entered, and from the order denying a new trial, that this appeal is taken. The appellant insists that the evidence failed to show any negligence on the part of the defendant’s driver, and, in addition, not only failed to show circumstances from which the absence of contributory negligence on the part of the deceased might be fairly inferred, but affirmatively proved such negligence on his part. In disposing of these questions an examination of all the evidence, and a brief statement- of the occurrences which led up to the death of the plaintiff’s testator, are rendered necessary.

It appears that the deceased, who was between sixty-five and .seventy years of age, on the afternoon of November 2, 1894, between 5 and half-past 5 o’clock, left his home, in West Twenty-fourth street, east of Sixth avenue, and started westerly, on the upper sidewalk of that street, to go to a store on Twenty-fourth street, between Sixth and Seventh avenues. On reaching Sixth .avenue, what occurred is detailed by a doctor, who testified that he was riding downtown on the platform of a Sixth avenue surface car, and that when about to alight, at the upper crosswalk of Twenty-fourth street, he saw the decedent standing there, between the car tracks to the east, waiting for the car, upon which the witness was, to pass; that the defendant’s horse and wagon were near the lower crossing, coming up on the car track on which the decedent stood, “at a good square trot,” about seven miles an hour; that they approached the upper crosswalk without slackening speed, and when near the decedent, who was between the two rails of the easterly track, the latter, seeing his danger, and finding his passage obstructed by the car going down on the westerly track, endeavored to save himself by running in a northerly direction, but, being too slow to avoid the horse and wagon, he was struck, thrown down, and run over; that the horse and wagon did not stop till they had gone half a block away. The version given by the defendant’s driver was that as he was about, to cross Twenty-fourth street he looked ahead, and the track was clear; lie took a glance up the street, each Way, to see if there was any wagon crossing, and when he looked ahead again he saw the deceased within about three feet of the track, walking very slowly, and the instant he saw him he shouted to him and checked his horse; that the man was looking straight ahead to the front, going west; that when he first saw the man he was across the downtown crossing of the street, and his horse was about ten feet from the deceased; that as soon as he saw the deceased he started to check horse, which seemed to slacken up slightly; that the deceased did not seem to notice anything, but walked deliberately in front the horse; that he succeeded in checking the horse before he reached the crosswalk, but could not bring him to a standstill; that he passed the deceased before stopping the horse, and then pulled him to the side of the curb in front of the store two doors from the corner. He further stated that it wa6 almost dark at the time. The only other witness examined said that when he first saw the deceased the defendant’s horse was about two feet from the downtown crossing going up, and the deceased was on the up-town crosswalk, about ten feet away from the car track on the east side of the avenue, about halfway between the curb and the car track, walking towards the west. He next saw the deceased under the defendant’s wagon, and he turned his horse one side and stopped him before he came to the deceased. When he stopped his horse he was about half way to the upper crossing; He had been driving behind the defendant’s wagon for at least a block, and was going at the same rate of speed.

We think that upon this evidence it was clearly a question for the jury, because, if they believed the testimony of the doctor, who was an entirely impartial witness, it would appear that the deceased, while on a cross walk, where he lawfully had a right to be, and in attempting to cross the street, was run down by a wagon which was driven at a lively pace,—so lively that, according to the testimony of the driver himself, although he saw the deceased some distance away, he was unable to check the horse until after he had run down the deceased and gone some distance beyond the upper crosswalk. We think that the jury were clearly right in holding, upon such testimony, that the driver was negligent, because, at a time when, according to the driver, it was almost dark, and necessary to keep a sharp lookout for pedestrians and for other vehicles, he-approached the street crossings at a pace which prevented his being able, though he saw the possibility of danger, to avert it. Hor do we think the record wanting in evidence from which the jury had a right to conclude that the decedent was free from contributory negligence. He had a right to cross the avenue, and, having got between the two rails of the easterly track, he was .obliged to stop to permit a car going down town to pass; and while •in that position he turned and discovered the rapidly approaching wagon, which he endeavored to avoid by running in a northerly direction. This is not a case, then, of one placing himself in a position of danger, but of a person crossing an avenue ,which he had the right to do, who, finding his passage obstructed by a car, and being placed in a position of danger by an approaching wagon, does what seems to him best, under the circumstances, to avoid danger. There was no time for deliberation, and that the decedent was anxious to secure his safety is evidenced by his running in a northerly direction, which was the only way he could escape the wagon, unless he returned to the easterly side of the avenue. Whether the latter would have been the more prudent course is entirely immatrial. One who, under such circumstances, exercises tibe best judgment of which he is capable, cannot be said to have been guilty of negligence or want of care. If the position pf the appellant is right,—that the decedent was bound to see the approaching wagon, and hound to keep out of its way, and to assume that it would not slacken its pace,—then we must reach a conclusion that pedestrians have no rights in the streets which the-drivers of vehicles are hound to respect. We think that there was-' ample evidence to support the verdict., not only upon the ground of the driver’s negligence, but also that the decedent in no way contributed by his negligence to his death, and that the verdict, under the facts here appearing, being moderate, should not be disturbed.

The judgment should therefore be affirmed, with costs.

All concur.


author: RUMSEY, J.

text:
    Charles Hutchinson, Resp't, v. Mary Root, App'lt.
    (Supreme Court, Appellate Division, First Dept.,
    Filed March 20, 1896.)
    1. Evidence—Parol.
    Where the defendant, upon a sufficient consideration, guarantees, to plaintiff the payment by her husband as her agent of all sums' up to $5,000, which may become due or owing from the ag-ent on account of coal from a certain colliery, which may be sold to or by such agent, the guaranty covers any coal which may be sold by or to such agent.
    2. Contract—Construction.
    In determining the construction of a guaranty, the court will ascertain the intention of the parties to them in the sam,e manner as that intention is ascertained with regard to any other contract.
    5. Guaranty—Proof of amount due.
    Though a provision in a contract requires plaintiff to furnish-verified statements showing the amounts remaining undue and unpaid for coal, yet, where it appears that the parties to-the original contract adjusted the amount sold and the amounts in which the vendee was liable, without any request for a verified statement, complaint cannot be made by the guarantor, in an action on his-guaranty of payment, that such a statement was not furnished. ,
    4. Evidence —Parol.
    Parol evidence is admissible to explain the meaning of words,, when the words are susceptible of two constructions; in such case, evidence may be given of the facts and circumstances which surround the transaction, so that the court can put itself in the same position as the parties who made the contract, to enable it to-ascertain the meaning intended by them.
    6, Same.
    A contract which, by its terms, gives to defendant the sole agency for the sale of the total output of a colliery at all points along the line of a certain railroad, and requires the plaintiff to fill all orders for coal sold by or through her agent to any person upon the line-of such road, or to its branches or connections, at prices therein, stated, is not at all ambiguous nor require any construction
    Appeal from a judgment in favor of plaintiff.
    George H. Adams, for app’lt; W. R. Wilder, for resp’t.
   RUMSEY, J.

On the 15th day of October, 1891, the plaintiff entered into a contract with one Hattie P. Root, by James H... Root, her agent, by which, among other things, the plaintiff contracted to give Mrs. Root the sole agency for the sale of the total output of the Ben Carbon Colliery, “at all points along the line of the New York, Lake Erie and Western R. R. Co., its branches and connections.” The plaintiff further agreed to fill all orders for coal sold by said party of the second part or her agents to any person or persons on the line of the said Hew York, Lake Erie and Western Railroad, or its branches or connections, at prices stated in the contract. The contract further provided that Mrs. Root agreed to employ James H. Root as her agent in selling the coal, and to give to the plaintiff a written guaranty of the defendant here, in the sum of $5,000, for the faithful performance by James H. Root, “agent of said party of the second part, of her agreement above set forth.” This contract was delivered on the day of its date. Two days before the time, the defendant had executed the guaranty on which this action is brought, and which is in the following words:

“In consideration of the sum of one dollar to me in hand paid and other good and valuable considerations me thereunto moving, I hereby guaranty to Charles Hutchinson, of Carbondale, Pa., the payment by James H. Root, of New York City, as agent for Hattie P. Root, of all sums up to five thousand dollars ($5,000) which may become due and owing from said Root, as agent, on account of coal of the Ben Carbon Colliery which may be sold to or by said agent.”

During the months of November and December, 1891, the plaintiff delivered considerable quartities of coal to James H. Root, for a large portion of which Root failed to pay; and thereupon this action was brought upon the guaranty of the defendant. The action was tried before a referee, and judgment was directed to be entered for the plaintiff in the amount claimed. Erom that judgment, the defendant takes this appeal.

The serious question presented by the'record in its present condition turns upon the construction to be given to the contract of guaranty upon which the action was brought. The contract was dated on the 13th of October, 1891. It was under seal, and it expressed a consideration. It did not refer to the contract between Hattie Root and the plaintiff. Indeed, it could not do so, as at the time it was executed that contract had not been made. The referee has found that this agreement of guaranty was a part of the consideration given to the plaintiff at the time of making the contract with Hattie Root, but he has not found that, at the time of the execution of this guaranty by the defendant, the provisions of the contract to be made between plaintiff and Hattie Root were made known to her, or that she had in view any particular contract, or that any .special provisions should be put into the contract which she intended to guaranty. Heither does he find that this guaranty was given solely to secure the performance of the contract of October 15th, nor can there be any presumption that such was the case. The facts do not show any of the circumstances which were presented to the defendant at the time of the making of this guaranty, and for that reason it must be construed upon the words of the guaranty itself. The rule with regard to> the construction of such contracts is that the court will ascertain, the intention of the parties to them in the same manner as that intention is ascertained with regard to any other contract. But,, when the intention of the parties is ascertained, the guarantor is-entitled to have the contract thus construed strictly applied, and its meaning cannot be extended to charge him upon it. Schwartz v. Hyman, 107 N. Y. 562, 565; 12 St. Rep. 478; Bank v. Kaufmann, 93 N. Y. 273. Applying that rule, we must examine the guaranty itself, to ascertain the extent of the plaintiff’s liability, "When we turn to that paper, we meet with no difficulty whatever. Upon a sufficient consideration, she guaranties to Charles Hutchinson the payment by James H. Root, as agent for Hattie H. Root,, for all sums, up to $5,000, which may become due and owing from the said Root as agent on account of coal of the Ben Carbon Colliery which may be sold to or by said agent. This guaranty, bv its terms, is broad enough to cover any coal which may be sold by James Root or to him as agent for Hattie Root; and, if this-construction be given to it, it is quite clear that n^ fault can be found with the conclusion reached by the referee.

But if it is to be said that the guaranty which was given was-a part of the consideration of the contract between Hattie P. Root and the plaintiff, set out in the complaint, and was to be confined to coal delivered under that contract, even yet the conclusion of the referee cannot be overthrown. That contract, by its terms, gave to Hattie Root the sole agency for the sale of the total output, of the plaintiff’s colliery at all points along the line of the Hew York, Lake Erie and "Western Railroad Company, its branches- and connections; and, by it Hutchinson agreed, in. ter ms, to fill all orders for coal sold by or to Mi’s. Root or her agents to any person upon the line -of that' railroad, or its branches or connections,, at prices therein stated. These words are not at all ambiguous, nor do they require any construction. When it is made to appear that any particular place is upon the line of that railroad or its-branches or connections, so that coal shipped upon that road may be taken by the road to that place, the coal thus shipped is within' the terms of this contract. It was made to appear in the case, and was not contradicted, that not only was Weehawken one of the-termini of the Erie Railroad, but that the coal docks there, upon which large quantities of this coal were delivered," were leased by and under the control of that railroad. When this appeared, it necessarily followed that the coal delivered at that place upon the-order of James H. Root, as agent, was within the terms of the contract, and was protected by the guaranty.

There was no case made for the admission of parol evidence to explain these words as used in this contract, except so far as it-might have been necessary to show that anv given place was situated on the line of that road. Parol evidence is admissible to explain the meaning of words when the words are susceptible of two constructions, in which case evidence may be given of the facts and circumstances which surrounded the transaction, so that, the court can put itself in the same position as the parties who made the contract, to enable it to ascertain the meaning intended by them. Greenl. Ev., §§282, 288. But that is not this case; the words used here are perfectly plain, and not ambiguous in the least. Parol evidence may also be given where the words-used have technical meaning, or are terms of art. In such cases,, experts are permitted to give then* opinion as to the meaning of' these words. Greenl. Ev., § 280. It is claimed that parol evidence was competent under this principle, and it was with that view, no doubt, that the referee permitted it to be given. But the rule did not apply here. There were no terms of art used. The-defendant proposed by this parol evidence to show, not the meaning of the words used here, but the meaning of the words “tide-coal” and “line coal,” which are not used in the contract. His-, notion was that he could give testimony by which the plain words of the contract should be limited to include only one kind of coal, and then the meaning thus limited could be explained by the evidence of experts. But he made no case for the giving of any such testimony as that. If the parties had used the words “line-coal” and “tide coal” in their contract, it would, undoubtedly,, have been competent to give testimony to explain the meaning of •those words. But they did nothing of the sort. They used in the contract plain words, which were susceptible of one meaning,, and which certainly cannot be said to have any technical meaning anywhere. The proof offered and given on the part of the defendant here amounted to showing that, undr this contract, both -line and tide coal were shipped to Root, as agent; but that only line coal was intended to be included within the terms of the contract. It may be quite true, as defendant claims, that coal shipped to the terminus, at Weehawken, is tide coal, although it was conceded in the case .that such coal was not necessarily tide, coalp but that would not change the construction of the contract, which includes the total output of the mine and the sale of that output at all points along the line, and makes James H. Root the sole-agent for the sale of such output, and by which the plaintiff agrees-to fill every order for coal which is sold to any person on that line- or its connections, by Hattie P. Root or her agent. Within the terms of the contract, he would clearly be obliged to fill all orders for coal shipped to "Weehawken, whether it was line or tide coal; and the defendant just as clearly guaranties payment for one kind of coal as the other, provided only, it was shipped on this railroad or its connections. The stipulations at folio 218 of the case and schedules attached show that co-al shipped to Weehawken was shipped upon the order of J. H. Root, as agent; and that stipulation includes all the coal which was recovered for in this action. Whichever construction may be given to this guaranty, whether it be broadly construed according to its terms, or whether those terms be limited by reference to the contract between Hattie Root and the plaintiff, the defendant is clearly liable for the coal which was sold under the proofs here, and for which she was charged.

It is complained by the defendant that no verified statements of the amount of coal sold to Root, as agent, were furnished to show the amounts remaining due and unpaid for coal. But that fact is of no importance here. Such statements were not to be furnished to her, and the provision was clearly one with which the guarantor had nothing to do. There is no dispute with regard to the amount of coal sold. She herself stipulated in this action, and it appears, and is not disputed, that the parties to the original contract adjusted the amounts sold and the amounts in which-Root was liable as agent, without any request for a verified statement. This provision of the contract was therefore waived by the parties to it, as it might have been; and the fact that they were not delivered cannot be insisted upon by the defendant here.

We have examined the various exceptions taken by the defendant to the rulings of the referee. While some of the evidence might very properly have been admitted in view of the claims which were presented upon the trial, yet the evidence, if given, could not have affected the result in the view which we take of the construction of this guaranty. For that reason, none of these exceptions call for reversal of this judgment.

Our conclusion is that the judgment must be affirmed, with costs.

All concur.


author: VAN BRUNT, P. J.

text:
    Anton Mazanec, Resp't, v. Manhattan Investment and Construction Company, App'lt.
    (Supreme Court, Appellate Division, First Dept.,
    Filed March 20, 1896.)
    1. Jüdqmbht—Offer.
    Matter contained in an answer, in order to he considered as an offer of judgment, must he accepted within the time limited hy the Code, or it cannot he used upon the trial.
    2. Save.
    Such matter cannot he considered as an admission, where it is not couched in the terms of an admission and is inconsistent with the positive denials contained in the answer.
    3. Same.
    Defendant is not hound hy an offer to compromise until the case is called for trial.
    Appeal from a udgment in favor of plaintiff.
    C. Goldzier, for app’lt; N. A. Alexander, for resp’t.
   VAN BRUNT, P. J.

This action was brought to recover moneys paid on a contract, and damages to the amount of $1,000' for false representations in respect thereto. The defendant answered, admitting the execution of a contract, denying the representations, and that the plaintiff relied upon them, and alleging an offer to rescind the contract, which was declined. The answer further stated that the defendant was willing to restore to the plaintiff the amount paid, to wit-., the sum of $145, upon the cancellation of the contract, and thereby offered to repay the same upon delivery up for cancellation of said last-mentioned contract. Upon the issues thus formed, the case came on for trial, and the plaintiff tendered the contract for cancellation, and the court directed judgment for $145 and interest and $15 costs, to which ruling the defendant duly excepted. From the judgment thereupon entered, this appeal is taken.

.We do not see what authority there existed for the action of the court which resulted in this judgment. If the matter contained in the answer is to be considered as an offer, such offer not being accepted within the time limited by the Code, it could not be used upon the trial. It cannot be considered as an admission, because it is not couched in the terms of an admission, and is inconsistent with the positive denials contained in the answer. The most that could be claimed for this allegation in the answer is that it was an offer of compromise; that the defendant, without further litigation, was willing to settle the case upon the terms mentioned in the answer. By such an offer, the defendant was not bound until the case was called for trial. There seems to be no theory upon which a tender of payment of this discription can be made the basis of a judgment.' It is not an admission of anything due, or of any liability which could form the subject of a judgment.

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

All concur.


author: PATTERSON, J.

text:
    Clinical Instruction Company, Resp't, v. New York Elevated Railroad Company, et al., App'lts.
    (Supreme Court, Appellate Division, First Dept.,
    Filed March 20, 1896.)
    Damages—Elevated Bailroad.
    Where it does not appear that, by reason of the presence and operation of the road, any smaller amount of rent is fixed and received than would have been demanded or paid had the structure not existed, the element of loss of rental value is absent from the case.
    Appeal from a judgment in favor of plaintiff.
    B. Tolles, for app’lts; J. R. Abney, for resp’t.
   PATTERSON, J.

It is made to appear very plainly, by the evidence, that the pemises involved in this action have been seriously affected by the construction and operation of the elevated railway in front of them. The structure comes to within, a few feet of the front wall of the building, and he depot station and shed extend easterly along Thirty-Fourth street to within twenty-five feet of the westerly line of the building. Trains pass every few minutes, and the ordinary ill effects of said conditions are fully pointed out in the proofs.. There was a clear case, therefore, presented for an injunction, or compensation for the taking of easements, in the ordinary form of alternative relief; but there is some difficulty in arriving at what should be fairly allowed as compensation for taking the easements. The expert testimony, such as it is, is not altogether satisfactory, but there was enough to justify the trial judge in fixing the amount allowed for depreciation of fee value at the figure he adopted, and, under all the circumstances of the case, we are not disposed to interfere with his conclusion on that subject.

But with reference to the damages allowed for rental value, the judgment cannot be sustained. Almost all that evidence as to depreciation of rental values was of the character condemned in the Jamieson Case, 147 N. Y. 322; 69 St. Rep. 688; and there was so much of that class of evidence allowed that it could not fail to have been controlling in the decision. In addition to that,, it also appears that the plaintiff did not, in reality, suffer any damage by reason of any definite loss of rents, for its relation to ,the tenant of the pemises was such that it seems to have contemplated that the tenant would not pay even such rent as was nominally secured by leases of it, it being the intention of the plaintiff to accept just so much of the agreed amount of rent as the tenant was able1 to pay. It does not appear that, by reason of the presence and operation of the elevated railway, any smaller amount of rent was fixed or received than would have been demanded or paid had the structure not existed. The element of loss of rental value was, therefore, absent from the case, and the factors to sustain a finding of damage such as would be necessary in a case of this character are not to be found in the proofs before us.

We think, therefore, that the judgment appealed from should be reversed, unless the plaintiff stipulates to waive so much of the-judgment as allows a recovery of money damages to rent value. If such stipulation is made, the judgment will be modified by striking therefrom the provision respecting the recovery of damages to rental value, and by reducing the costs as taxed by deducting therefrom the sum of $7 5, being that much of the extra allowance granted after the trial of his action without costs. If such stipulation is not given, a new rial will be ordered, with costs to the appellant to abide the event.

All concur.


author: WILLIAMS, J.

text:
    William F. Lennon, Resp't, v. George Grauer et al., App'lts.
    (Supreme Court, Appellate Division, First Dept.,
    Filed March 20, 1896.)
    Forgery—Indorser.
    An indorsement of negotiable paper is a warranty, in law, by the indorser, to the holder in good faith, that the paper itself and all the antecedent indorsements are genuine; and, even though they were all shown to be forgeries, the indorsers will be liable to the holder for the amount of the paper.
    Appeal from a judgment in favor of plaintiff and from an order denying a motion for a new trial.
    The action was brought upon a promissory note for $1,200, alleged to have been made by Mary Hines, and indorsed by John Graff, M. Gartner, the defendant Grauer, and the Spencer Heed-ham Company, and held by plaintiff. The action was, in form, against the maker and all the indorsers; but the trial was had, and the verdict was ordered, against the defendant Grauer alone. Hpon the trial the plaintiff gave evidence tending to show that the indorsement of Grauer upon the note -was' in his handwriting. ■Indeed, his indorsement was hardly denied in his answer. Plaintiff also gave evidence tending to show that he purchased the note of the Spencer Heedham Company, and paid full value for it before its maturity; that it was duly protested when due, and notice given to defendant Grauer. The note was put in evidence, and the plaintiff rested. The defendant Grauer was sworn, but would not say that the indorsement of his name on the note was not in his own handwriting, the defendant offered to prove that the note was never given by the alleged maker thereof. The court held that such proof was immaterial, so long as it appeared that the plaintiff was. a bona fide purchaser of the note before maturity. The defendant stated that he made no requests to go to the jury, and thereupon the court ordered a verdict for the plaintiff. There was no exception to the direction of the verdict, but there was an exception to the denial of the motion for a new trial.
    Delos McCurdy, for app’lt; William M. Cather, for resp’t.
   WILLIAMS, J.

There was evidence tending to show that the defendant Grauer indorsed the note, that it was transferred to plaintiff before maturity for full value and without notice to him of any infirmity in the note, and that it was duly protested when due, and notice given to the defendant. The court found these facts to be true, the defendant not desiring to go to the jury. The only question, therefore, for consideration on this appeal, is whether the fact sought to be proved by the defendant, that the note was never given by the maker, never signed or delivered by her, was material, or would, if proved, have constituted a defense to the action, in view of the facts so found by the court. There is no doubt as to the law with reference to this question. In Turnbull v. Bowyer, 40 N. Y. 456, it was held that an indorsement of negotiable paper was a warranty, in law, by the indorser, to the holder in good faith, that the paper itself, and all the antecedent indorsements, were genuine; and, eve a if they were all shown to be forgeries, the indorsers would be liable to the holder for the amount of the paper.

The case was properly disposed of by the trial court, and the judgment and order should be affirmed, with costs.

All concur, i


text:
    Edmund Beer, Resp't, v. Thomas Canary et al., App'lts.
    (Supreme Court, Appellate Division, First Dept.,
    Filed March 20, 1896.)
    Injunction—Contract.
    An injunction is a proper remedy against the breach of a contract, where the party is irresponsible, judgment recovered uncollectable and action for damages entirely inadequate because the .actual damages cannot be ascertained or decided even proximately.
    Appeal from an order denying an injunction pendente lile.

    The action was brought upon a contract in writing, and the relief asked for was a permanent injunction, and a temporary injunction pending the action. The agreement was dated August 22, 1895, and provided that the defendants, as lessees of the Casino Theater in New York City, agreed to allow plaintiff to put up and display, at his own expense, a curtain, in the front of the stage, to be covered with advertising matter, and to be exposed five minutes before the beginning of each performance, and during the whole period known as “between the acts,” and to occupy the regular space in the proscenium arch of the theater. No advertisement generally considered objectionable to be allowed on.the curtain. The curtain to remain the property of the plaintiff, and proper opportunity to be given to make any or all changes in the advertisements on the curtain when necessary. No other advertising curtain to be used as an act proscenium curtain by defendants during the term of the contract. The consideration for such rental to be $600 for each month during the time regular performances were given in the theater, but nothing while the theater was closed to the public. The first $600 to be paid, $300 August 26, 1895, and $300 September 5, 1895, and the additional payments of $600 every month in advance, commencing October 5, 1895. To -be in force for one year from September 3 5, 1895. The first $600 was paid before September 15, 3895. The theater was closed from September 27 until November 5, 1895, and it was agreed that the month for which the $600 had been paid should begin November 5, 1895. The curtain was prepared by the plaintiff, at an expense of $250, and was hung in the theater Hovember 11,1895, at an expense of $76.90. Both parties then examined it. There is conflict in the evidence as to what occurred Hovember 11, 1895, and during the next few days thereafter. There seems to be no doubt, however, that there was some disagreement between the parties as to the character of the advertisements and work upon the curtain. The defendants would not permit the curtain to be displayed under the contract, and, the papers having been prepared, his action was begun, and an order to show cause why a temporary injunction should not be issued was made Hovember 27, 1895. The order denying the motion was made December 27, 1895, and from that order this appeal is taken.
    Benno Loewy, for app’lt; Howe & Hummel, for resp’ts.
   WILLIAMS, J.

We do not think that it can be said that there were any advertisements upon the curtain which would be generally considered objectionable, under a fair interpretation of the language used in the contract. It may seem to some people that any advertisement placed upon the drop curtain in a first-class theater would be generally considered objectionable, but first-class theaters did not expose such curtains, both in this country and in Europe, before this contract was made. The defendants had a right to make the contract, and they did make it. The plaintiff expended $250 in preparing the curtain, and $76.90 in hanging it, and paid defendants $600„for the first month’s rent. Under these circumstances, the defendants were under obligation to carry out the contract, and they should not be heard to allege, as a reason for not carrying it out, tha any advertising curtain would be generally regarded as objectionable in a first-class theater. Giving the language used in the contract a fair construction, and such meaning as the parties evidently intended when they executed the contract, it cannot be said that any advertising matter upon the curtain was such as would generally be regarded as objectionable. The advertisements were all of them printed matter and illustrations, the same as had already repeatedly appeared in the daily newspapers and in theater programmes in New York city, and no one ever regarded them as objectionable when so placed before the public. The objections made by the defendants to the advertising matter upon the curtain were mere pretenses, and were no excuse for refusing to carry out the contract by exposing the curtain as therein provided. Hor was it a sufficient reason for refusing to expose the curtain as agreed that some of the spaces upon it were not filled with advertisements, and that there was upon the curtain a notice that persons desiring to advertise thereon should apply to the plaintiff’s agent at a place designated. The undertaking was a new one, and could not be expected to be in complete working order at first. Persons might well be unwilling to contract for advertising space until the curtain had been tried, and exhibited a fair prospect of success. The contract itself recognized the fact that changes in the advertisements would become necessary, by providing that proper opportunity should he afforded plaintiff to make changes in the advertisements from time to time as it became necessary. We see no reason why the defendants, having entered into the contract, and thereby led the plaintiff to expend his money in preparing and hanging the curtain, to the amount of $326.90, and having received from the plaintiff $600 more in payment of the first month’s rent, should not have carried out their part of the contract, by exposing the curtain as the contract provided they should do. The plaintiff has not only expended $926.90 in money, as stated, but he has entered into advertising contracts with various paries, for the violation of which he may he held liable for damages. We see no reason why he should not be protected, by some adequate remedy, against the violation of the contract by the defendants. He could maintain an action at law against them for damages, hut they are apparently irresponsible, so that any judgment he might recover, would he uncollectible. And, besides this, an action for damages would he entirely inadequate as a remedy, because the actual damages could not he ascertained or decided, even approximately. The only remedy at all adequate, under the circumstances, would he the remedy by injunction. The case, in this view, is within the rules laid down in Davis v. Zimmerman, 91 Hun, 492; 71 St. Rep. 385; House v. Clemens, 24 Abb. N. C. 381; Christie v. Shankey, 46 Hun, 680. We think an injunction should have been granted by the special term, protecting the plaintiff under the contract, so far as an injuncion could do it, requiring the defendants, if they conducted the theater at all, to use the plaintiff’s curtain, and forbidding their use of any other curtain in the place it was provided by the contract this curtain should he used.

The order appealed from should he reversed, with costs of appeal, and the injunction order granted, with $10 costs of motion.

All concur.


author: BARRETT, J.

text:
    Maggie Pratt, by Guardian, etc., App'lt, v. Spencer Charles Pratt, Resp't.
    (Supreme Court, Appellate Division, First Dept.,
    Filed March 20, 1896.)
    1. Divorce—Reference.
    Where, in an, action for divorce, the court appoints a referee agreed upon by the parties, it is a direct violation of the provisions of the Code and General Rules of Practice.
    2. Same.
    In such case, a suecial term is right in refusing to act upon the referee’s report and in setting aside the order of reference.
    Appeal from an order, denying plaintiff’s motion for .judgment on the report of a referee, and from an order, vacating the order <of reference and appointing a new referee to hear and determine the action.
    Thomas McAdam, for app’lt; Isaac N. Miller, for resp’t.
   BARRETT, J.

Upon the 26th day of April, 1895, the parties hero agreed upon a referee, and the court thereupon appointed the referee so agreed upon. This was a direct violation of the mandates of the Code of Civil Procedure and of the General Rules of Practice. Section 1012 of the Code provides that, when a reference is granted in an action to annul a marriage or for a divorce or a separation, the court must designate the referee. Rule 73 of the General Rules of Practice then provided, as rule 72 now provides, that in such actions the court “shall in no case order the reference to a referee agreed upon by the parties.” Procedure in disregard of these provisions is not a mere irregularity. Such procedure is unquestionably void. The law was not enacted, nor was the rule established, for the benefit of the parties to matrimonial actions, but for the public good. In this respect the mandate and prohibition differ from the regulations with regard to referees in foreclosure and partition actions. The latter regulations were adopted to secure fair dealing upon judicial sales, and to prevent one party from overreaching the other. The former regulations were enacted to prevent one party from colluding with the other. Public policy favors the continuity of the marital union. It condemns any breakin that continuity not specifically authorized bylaw'. For this reason the parties are permitted, as they, are in ordinary controversies, to admit the facts, or to waive proof thereof; nor is the court permitted to grant relief upon their consent. To render these interdictions effectual, to prevent the possibility of their being evaded, the referee rule was adopted. It is distinctly in harmony with the statute. The statute says that the court must designate the referee. To guaranty strict compliance with this mandate, the rule declares that the court shall not in any case “order the reference to a referee nominated by either party, nor to a referee agreed upon by the parties.” What is that but saying that the court must designate the referee freely, independently, and without a breath of suggestion? The moment the rule is successfully invaded, that moment the statute falls. If parties may walk through or around these regulations to a tribunal of their own arrangement, they can as readily walk through or around all the obstacles which the law places between them and their desires. Given their own friendly tribunal, and what becomes of the remaining statutory safeguards? There can be no compromise here with evasion or trifling. To make an exception of a hard case would simply be the entering wedge for the destruction of a system devised to prevent collusive divorce or separation. The court does not act in favor of or against either party. It listens to no suggestions of estoppel. It learns of the abuse of its authority, and thereupon, of its own motion, it sets the matter right. Thus, the parties are brought back to the precise point at which they were when they deviated from the straight line. The special term was right in refusing to act upon the referee’s report, and in setting aside the order of reference. It erred, however, in appointing a new referee. The consent which we condemn was not a consent to refer generally; it was a consent to réfer to the referee named in the order. The reference, therefore, fell with the vacating of the order.

It follows that the order denying the motion to confirm the referee’s report should be affirmed, without costs; and the order vacating the order of reference should be modified by striking out the the provision referring the issues to another referee, and, as-thus modified, affirmed, without costs.

All concur.


text:
    People ex rel. William Strauss, App'lt, v. Theodore Roosevelt et al., as Police Commissioners, etc., Resp'ts.
    (Supreme Court, Appellate Division, First Dept.,
    Filed March 20, 1896.)
    1. Municipal corporation—Police—Dismissal.
    The evidence, in this case, was held to sustain a conviction for falsely making charges against the detail officer and altering the station-house records to cover up the mistake in the order.
    3. Same—Offical record.
    Commissioners, on the trial of a police captain for falsely making charges against a subordinate, may consider the latter’s prior official record merely on the question of punishment.
    Certiorari to review the proceedings of the board of police commissioners, resulting in the dismissal of relator from the position of captain of police.
    The relator, a captain in the police department of the city of New York, was dismissed from the service on November 22, 2895. The charges upon which he was found guilty contained the following specifications:
    “First. The said Gapt. Strauss did, on or about the 2d day of September, 2895, authorize and permit the erasure by Acting Sergeant Hammond, of the. samo precinct, made as of the date and hour of 6:25 p. m., September 2, 2.895, and the substitution by said Hammond of another entry in place thereof.
    “Second. On the 3d day of September, 2895, the said Onpt. William Strauss did falsely, and with intent to deceive, report in writing to the chief of police that, at 6:30 p. m., on the 2d day of September, 2895, Roundsman John Buckley and six policemen from the reserve were sent to Seventy-Ninth street and First avenue, with instructions to enforce the ordinance relative to fireworks, and preserve the peace, and that the said Roundsman Buckley, in mistake, went as far as Eigbty-Sixth street; the fact being otherwise, as the said Oapt. William Strauss then and there well knew.
    “Third. The said Capt. William Strauss did, on or about the 4th day of September, 1895, with intent to deceive, falsely charge the said Roundsman John Buckley with ‘neglect of duty/ in this, to wit: Roundsman John Buckley was directed by Acting Sergeant Hammond to go to First avenue and Seventy-Ninth street with six patrolmen from the reserves to preserve the peace •and prevent fireworks being set off by the Cherokee Club, who had a parade, at 8 p. m., September 2,1895, and, instead of going to the place directed, he went to the foot of East Eighty-Sixth street, and, when he was informed that the Twenty-Seventh precinct police had charge, and that they would escort the above-named club through their precinct, the said roundsman returned with his men to the station house.”
    Louis J. Grant, for relator; Theodore Connoly, for resp’ts.
   BARRETT, J.

No error of law in the proceedings under re,-view is urged upon us by the counsel for the relator. "He claims, simply, that the respondents reached an erroneous conclusion in .view of the facts proved, and asks us to set aside the decision as ¡contrary to the weight of evidence. Code Civ. Proc. § 2140, subd. 5.

On September 2, 1895, an organization called the “Cherokee SClub” had a parade. The members went from the club house at ¡Seventy-Ninth street and First avenue to Eighty-Sixth street and •East river, where they embarked. They wei'e expected to land the latter spot on the evening of this day, and an order was sent the relator from the central office to have men present along-¡the route of the parade, so far as it lay in his precinct (the Twenty-Fifth) to prevent the discharge of fireworks. A rounds-man named Buckley and six men were sent upon this duty. Instead of going to Seventy-Ninth street and First avenue, which was in the Twenty-Fifth precinct, they went first to Eighty-Sixth street and East river, which is in the Twenty-Seventh. The-relator subsequently charged Buckley with neglect of duty in going to the wrong place. The trial resulted in his acquittal. The respondents claim that the charge against Buckley was false; that the relator directed him to go to Eighty-Sixth street, and subsequently attempted to cover up his mistake by procuring an erasure of the entry in the station-house blotter which recorded the misdirection.

The principal witnesses for the prosecution were Hammond, the acting sergeant, and Buckley, the roundsman. The testimony of these two men is in entire accord. They say that, about 6 m., on September 2d, the day of the parade, the relator told ¡Buckley that the Cherokee Club would land at Eighty-Sixth street and First avenue about 8 p. m., and that he wanted Buckley and six men to go to this place, and escort the procession; that Hammond passed the men along upon this order, without himself intervening; that, after Buckley and his men started out, the former returned to make sure that there had been no mistake in sending him to a place outside of the precinct; and that Hammond tóld him to obey the relator’s orders. Hammond further says that he made the entry of a direction to go to Eighty-Sixth street in the staion-house blotter about 6:30 p. m., and that, between 11:30 and 12 the same evening, the relator told him he had better change it to Seventy-Ninth street, since the entry as it was might get them into.trouble, and Hammond accordingly made the change. Buckley further states that, when he got back with his men to the station house, he had a talle with the relator, who declared that he had sent the witness to Seventy-Ninth street, which the latter denied. Also, that, the next morning, the relator called him into his office, and told him that he was getting up a report to send to Chief Conlin; that he showed him part of it, which contained the statement that witness had been sent to Seventy-Ninth street; and that witness told the relator that this was not true, and that, if he sent this, he would send in a false report.

The relator, in his own defense, denied these charges, and his counsel vehemently assails Hammond’s credibility. That the latter has perjured himself there can be no doubt. On the trial of Buckley he testified in the relator’s behalf, and swore that be himself ordered the men to go to Seventy-Ninth street, and made the entry accordingly; that he did not malee the erasure under anybody’s direction, but because of his own mistake; and that the correction was made before the men left the station house. On the present trial the witness, after some evasion and attempt to reconcile his different statements, admitted the falsity of his former testimony, and said that it was given to shield the relator, and at his instigation. Another circumstance is also alleged against him. It is undisputed that the relator, at the time the order to Buckley was given, made out a card on which were written the names of the men who were to go "with Buckley and the location to which they were sent. From this card Buckley made the entry in the blotter. At the trial a torn fragment of the card was produced, which contained the names of the men, but not the location. Hammond said he found this torn fragment in an ash barrel some days afterward, and gave it to Commissioner Roosevelt. The relator points out, as suspicious, the circumstances that the card, which was last in Hammond’s possession, should lack the very portion which, he says, would have vindicated him. He also proves facts tending to discredit Hammond’s story of how he found the card. The respondent’s argument, however, leaves the effect of this circumstance in equipoise. Why, they say, should Hammond have produced the card at all if it made against him? They argue, also, that the card probably contained the very Eighty-Sixth street address which the blotter contained at first, since the entry in the blotter was made from the card.

We now come to the relator’s own testimony. He swears that he told Hammond that the men must go to Seventy-Hintli street and First avenue, and also wrote the direction on a card. The other half of the card, he says, contained this direction. He thus declares that it was Hammond who gave the order to the men, and in this Hammond’s former testimony supports him. He also swears that, later this same night, Hammond told him that the men had come back from Eighty-Sixth street; that he asked what they were doing up there; and that Hammond said he did not know, for he told them to go to Seventy-Hinth street. In this he is corroborated by Clements, a friend of the relator of ten years’ standing, who was in the relator’s office, and swears that he overheard what was said. It is, however, peculiar and somewhat significant that the relator, in testifying as to the admission made by Hammond that he sent the men up to Eighty-Sixth street, at first inadvertently substituted Seventy-RTinth street for Eighty-Sixth street. In other words, he made the same mistake at the trial which the witnesses against him say that he made on September 2d. The discrepancies and difficulties of the relator’s testimony are many and serious. His tstimony varies from that given on the Buckley trial nearly as much as that of Hammond himself. On the trial he swore, first, that he had no conversation with Buckley whatever on the night of September 2d, and then that he had one, but merely about certain pay rolls. On his own trial he had another- access of memory, and recollected the whole of the conversations, admitting Buckley’s strenuous assertion, made in the course of these conversations, of his present position. On the Buckley trial he swore that, on the morning of the 3d, he did not mention Chief Conlin’s name, though now he fully admits the conversation about the report to which Buckley testifies. On the Buckley trial he swore that Buckley, when asked why he went to Eighty-Sixth street, said it was because the sergeant (Hammond) so ordered him. On his own trial, he admits that Buckley said it was because the relator himself so ordered him. Upon his own trial, he also denied in toto Hammond’s testimony as to the erasure in the blotter, and said he knew nothing about it until the Buckley trial. But he testified that, after his talk with Buckley in the evening of September 2d, he examined the blotter, to make sure that the direction given to Buckley had been Seventy-Hinth street, and found that the entry was correct, viz., Seventy-Hinth street and First avenue. This placed him in a dilemma, for, if the erasure had been made before he looked at the book, he should have seen it, and known of it at the Buckley trial; and, if it were made afterward, some one had committed the absurdity of erasing the entry, and then replacing it. Under pronounced prompting from his counsel, he chose to say that he did not observe the erasure when he examined ¡the blotter upon the evening of September 2d, and intimated that it might still have heen there, as he did not scrutinize the book carefully.

It is also very important that three of the men who went with Buckley, and the only ones who were put on the stand, all swear that the orders they received that night were to go to Eighty-Sixth street. These witnesses do not seem to have been present when the relator gave his orders. They swear that the orders in question were read over the desk by the sergeant in charge, viz., Hammond. This is the strongest corroboration of Hammond’s present testimony, and points persuasively to the fact that the original entry in the book was Eighty-sixth street and First avenue. Hammond had no possible motive for giving a wrong direction to the men, and that he should have made a mistake in reading from the book is almost improbable. Unless, therefore, the entry was changed between 6 o’clock and 9, the relator was not accurate when he swore that it read differently at the latter hour.' Even if Hammond’s testimony on the Buckley trial be taken as true, it does not aid the relator. He then said that he made a mistaken entry, but corrected it before the men left the station house. Assume that he did this just as they were leaving, still the matter was then in his mind, and it is inconceivable that he should have purposely sent the men on a wrong errand. ,j

The relator’s counsel makes the claim that there is as little likelihood that the relator made such a mistake as that Hammond did, because he also read from a book, viz., the telegraph blotter. This is a book in which is kept a record of dispatches received from headquarters. As to this affair, it contained a notification of the course the Cherokee Club would take, and a direction to the relator to patrol “the routes of parades in your precinct.” Buckley testifies:

“He (the relator) then picked up the blotter, the telegraph blotter, and read the route that was to be taken, from Eighty-sixth street and East river to First avenue, down First avenue to' Seventy-ninth street, where they were to dismiss. He read that route to me three times, so as to impress it upon my memory the better.”

The difference between the reading of this telegraph blotter and Hammond’s reading from the station-house blotter is apparent. It is fair to assume that Hammond did not read aloud, by mistake, one address, when another was written. Neither did the relator. He read the locations given in the telegraph blotter, but made the mistake of not limiting Buckley to that part of the course within his precinct. . He is simply asking us to assume that he did not make this mistake.

Finally, there is, in the record, the admission that the charges against Buckley were false. The relator’s counsel distinctly admits this to be his theory. No one but the relator, however, made any charges against Buckley. It is said that the relator in making the false charge against Buckley, relied upon Hammond’s statement that he gave the order to go to Seventy-ninth street. This reliance upon Hammond was not genuine. The relator undoubtedly knew better. But, even if his good faith in that particular could be granted, we should have difficulty in reconciling his conduct with a candid desire to do justice. The report to Chief Conlin, containing the charge against Buckley, was sent the next day. The relator admits that the matter was important, and says that he made inquiries of different witnesses in order to ascertain the truth. He did, in fact, inquire, either before or afterwards, of three men who went with Buckley; but each of them then said just what Buckley had said, viz., that they were sent to Eighty-sixth street. There is certainly something suspicious in the almost indecent haste with which this report, with this serious charge in it, was thus sent off.

The crucial question is whether or not the relator himself gave the erroneous order to Buckley. If he did, it taints the whole of his conduct, and he was rightfully found guilty on all three specifications. As to the last two specifications the proposition is self-evident. As to the first, the erasure, it is scarcely less plain. The station-house blotter was simply an accurate index of the orders given. If, then, the relator gave an order to go to Eighty-sixth street, the change of the entry to Seventy-ninth street could only be to shield him. Hammond would have had no interest in changing it, for it would not have been his mistake. The relator must, therefore, stand or fall upon the existence or non-existence of the fact above stated; and on that point the clear weight of evidence against him. Putting aside the testimony of Hammond, we still have Buckley’s, which was consistent and trustworthy. Whatever the relator and Hammond may have done, Buckley, at least, adhered to the same story throughout; and his testimony is worthy of the fullest credit. The former testimony given by Hammond also, though none the less discreditable, can still be accounted for The relator was his supporter, and, while Buckley alone was concerned, interest seemed to dictate that he adhere to the former. But Buckley was acquitted, and then charges against himself on account of the erasure seemed imminent. Self-interest now seemed to lead another way, and to this may also have been joined a suspicion as to whether the relator had the ability to fulfill his promise to get the charges against himself (Hammond) dismissed, if any should be made, or to lighten the punishment. The role of a scape-goat may well have seemed perilous.. Thus, Hammond’s action is not hard to follow or account for, though none the less dishonorable.

We have scrutinized the record with great care to see that no injustice has been done the relator, and are convinced that he had a fair trial, and was properly dismissed. It is impossible to set forth, in the brief limits of an opinion, all the facts contaned in the record; but nothing has1 been overlooked which bears in the relator’s favor, and many circumstances which tell against him have not been adverted to.

Ho point was taken by the relator upon the argument as to the use made by the respondents of his record. This was, doubtless, because, as he avers in his petition, his record had been good. His averment is that only two trivial charges have been made against him during the twenty-three years that he had been upon the force. The record, therefore, even if erroneously considered, could only have helped him. It appears, however, that the final resolution of the board, adjudging that the charges were true, made no mention of the reóord, and consequently had no bearing upon the question of guilt. From what appears in the return, it is fair to assume that the record was considered only on the question of punishment. The case, therefore, is not within the rule laid down in the recent decision in People v. Roosevelt, 37 N. Y. Supp. 488. There the record was bad, and the return clearly showed that it was considered upon the question of guilt. That was a close case upon the evidence; so close that we were of opinion that the record must have turned the scale against the accused. Here it is quite evident that the record played no such part. It could have had nothing whatever to do with the just conclusion arrived at. The only part it could have played, even if considered upon the question of guilt, was to induce the respondents to hesitate before convicting an officer whose long service in various grades was tinged with so little that was discreditable.

The proceedings should be affirmed, with costs.

All concur.


author: INGRAHAM, J.

text:
    Louis Lowenstein, App'lt, v. Lombard, Ayre and Company, Resp't.
    (Supreme Court, Appellate Division, First Dept.,
    Filed March 20, 1896.)
    Verdict—Correction.
    The court has power to correct a verdict so that the successful party shall recover the amount that the facts, as found by the-jury, justify, under the law as determined by the court on the trial
    Appeal from, an order denying a motion to correct a verdict by adding interest.
    Horace E. Deming, for app’lt; John A. Deady, for resp’t.
   INGRAHAM, J.

This action was tried at a trial term of the-superior court before a jury, and a verdict was entered for the plaintiff, such verdict recorded, and the jury discharged. Subsequently, at the same term of the court, the plaintiff made a motion to correct the verdict by increasing the amount so that it should1 include the interest upon the plaintiff’s claim; and that motion was denied, on the ground, as recited in the order, “that the power of the court to amend the verdict as requested is involved in too much doubt to warrant the granting of the said motion.” Although this phraseology .is somewhat indefinite, still we think it is apparent that the court refused to exercise any discretion in denying the motion, hnt denied it because it did not consider that it had power to grant the application. The cases in which the court has power to amend a verdict seem to us to be clear. By section 723 of the Code, it is provided that:

“The court may, upon the trial, or at any other stage of the action, before or after the judgment, in furtherance of justice, and on such terms as it deems best, amend any process, pleading, or other proceeding * * * by correcting a mistake in the name of a party, or a mistake in any other respect.”

And within the power thus conferred is plainly the power to correct a mistake in a verdict either before or after judgment; and the power to correct a verdict so that the successful party shall recover the amount that the facts, as found by the jury, justify, under the law as determined by the court upon the trial, is well settled. See Hodgkins v. Mead, 119 N. Y. 166; 28 St. Rep. 950. Dalrymple v. Williams, 63 id. 362. In Hodgkins v. Mead the jury were instructed that, if the plaintiff was entitled to recover, he was entitled to $848. The jury brought in a sealed verdict, by which they found simply a verdict for the plaintiff. After the jury was discharged, but at the same term of the court, the plaintiff made á motion to amend the verdict, by adding thereto the words “for the sum of $848.” The court granted that motion, and it was held by the court of appeals that the court had the power to grant the .order that it did, and the order was affirmed. The sole question for us to determine, therefore, is whether or not the court, on the trial, distinctly held, as a matter of law, that the plaintiff was entitled to recover the amount of the damages and interest if the jury found in favor of the plaintiff upon these facts.

On this appeal, we cannot review the ruling of the court upon questions of law upon the trial. That ruling must be reviewed on an appeal from the judgment or a motion for a new trial. We must assume that the jury intended to follow the ruling of the court, and excluded from their verdict the amount of the interest upon the plaintiff’s demand by mistake, if the court charged them expressly that the plaintiff was entitled, as a matter of law, to interest. The court charged the jury that:

“The plaintiff rests Ms right to recovery upon two grounds: (1) By reason of a special contract to insure the goods, by which the plaintiff might, in case of loss, have received from the insurance company the value of the goods; and (2) breach of a duty as a common carrier in sending the plaintiff’s goods to sea in an unseaworthy vessel, or, as may be otherwise stated, a breach of contract as common carriers, arising from failure to deliver the plaintiff’s goods.”

As to the first ground o'f recovery, the court charged the jury that, if they found there Avas a contract to insure, they should find a verdict in favor of the plaintiff for the sum of $13,072, that being the value of the goods lost, Avith interest from July 1, 1887; upon the second ground, that if they found that there was no contract to insure, but that there was a failure on the part of the defendant to perform its duty as common carrier, they could find a verdict in favor of the plaintiff for the value of the goods at the port of delivery; and, if the plaintiff was entitled to a verdict, he was entitled to recover the value of the goods, as appeared from the testimony, at the port of delivery, with interest from July 1, 1887; that this was claimed hy plaintiff to amount to the sum already stated as the sum the jury might find in favo°r of the plaintiff under the ground on which he seeks to recover. The defendant then requested the court to charge that, if the jury should find a verdict for the plaintiff on the ground of failure to deliver the goods shipped on the Yidette, no interest could be allowed. The court refused so to charge. It thus appears that the court expressly instructed the jury that, if the plaintiff was entitled to recover upon either ground, he was entitled to a verdict for $13,072, being the value of the goods with interest. And, the jury having found a verdict for the plaintiff, it must be assumed that they found, on the facts, that the plaintiff was entitled to recover; and they were bound to apply the rule of law as stated by the court, and give to the plaintiff the amount stated by the court, namely, $13,072. And, as before stated, we must assume that the jury intended to follow this direction, and inserted the amount of $8,619.85 as the amount of the recovery by mistake, instead of the correct amount, under the charge of the court, to which the plaintiff was entitled. It does not appear from the record that counsel for the defendant requested the court to charge the jury that the interest upon either of the grounds of recovery was in the discretion of the jury,' or that they could award interest or not as damages, in their discretion. Nor does it appear from the record that the defendant excepted to the charge of the court that the plaintiff was entitled to interest in case the jury should find for the plaintiff. The only request that the defendant made was that no interest could be allowed, which, clearly, did not present that point. It does not appear that there was any question submitted to the jury as to the value of the goods at the port of delivery; and, from the whole1 charge, it is .plain that the question submitted to the jury was whether the plaintiff was entitled to recover the amount as fixed by the evidence. We think, therefore, that the court had power to correct the verdict so as to state correctly the amount to which the plaintiff was entitled upon a finding in his favor, and that the court should have granted the motion and corrected the verdict accordingly.

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

VAN BRUNT, P. J., and PATTERSON and O’BRIEN, JJ., concur; WILLIAMS, J. dissents.