text:
    Mary J. Teckemeyer, App'lt, v. Supreme Council, Royal Templars of Temperance, Resp't.
    (Supreme Court, Appellate Division, Fourth Department,
    Filed April, 1896.)
    1. Insurance—Mutual benefit—Nonpayment—Waiver.
    Where it appears that nearly all the assessments levied on a member were paid from two days to six months after they were due, and transmitted by the financial secretary to the supreme secretary and by him turned over to the supreme treasurer, it is sufficient to warrant a finding that the financial secretary was authorized to extend the time for payment of the assessments.

      2. Same.
    The company, by receiving payment of one-fourth of an assessment due, waives the payment thereof on the day it was due, and recognizes the right of the member to pay thereafter the balance of the assessment.
    Motion for a new trial on exceptions ordered to be heard at general term in the first instance.
    William L. Jones, for pl’ff; J. H. Tatem, for def’t.
   FOLLETT, J.

This action was begun, April 17,1894, by the beneficiary named in a certificate issued by the defendant, to recover the amount which it agreed to pay on the death of a member of the association. The defendant was incorporated by chapter 586 of the Laws of 1880, and belongs to the class of corporations known as “mutual benefit societies.” By the act it is authorized to create and hold a fund, and pay therefrom a sum not exceeding $5,000 on the death of any of its members, pursuant to such rules and regulations as the corporation may adopt, power being conferred to malee, from time to time, rules, by-laws, and regulations for the management of its affairs. On October 15, :1878, Julius Teckemeyer was admitted as a member of this corporation through Protection Council, In o. 38, and certificate ¡No. 2,152 issued to him, which provides:

“In case he is in good standing at the time of his decease, his heirs or legal representatives shall be entitled to the sum of $1.00 from each and every active member in good standing, not exceeding two thousand, and he now directs that, in case of his death, it be paid to his wife, Mary Teckemeyer. * * * The conditions of this certificate are such that should the above-named J. Teckemeyer be suspended or expelled * * * for nonpayment of dues or assessments, then all the rights and benefits which the said J. Teckemeyer, or his legal heirs or representatives, as above named, may have upon the beneficiary fund of this order shall be forfeited.”

It is conceded that Julius Teckemeyer had paid all the dues and assessments from the date of his certificate, to and including May 10,1893, a period of fifteen years, and that, if the plaintiff is entitled to recover, she is entitled to receive $2,000 with interest. August 10,1893, the member wai stricken with cerebral apoplexy, and died at 5:35 p. m. that day. At the time of his deatli he was owing three dollars on the assessment due July 10, 1893, and four dollars on the assessment due August 10,1893, the date of his death. Seven dollars was the total sum of his arrears. August 11, 1893, the plaintiff paid to the wife of the financial secretary seven dollars, and received a receipt, Exhibit B, for the assessment due June 10, 1893, previously paid, and no receipt taken, and receipts, Exhibits O and T). for the assessments due July 10 and August. 10,1893. These receipts were signed by the financial secretary in blank, and left with his wife, to be filled and delivered on receiving payment. They weise dated August 8, instead of'August 11, 1893, by mistake, a rubber stamp being used for dating" which had not been changed since August 8, 1893. When the money was received and receipts given, the wife of the financial secretary did not know that the member was dead, but was informed of the fact by the plaintiff as soon as the receipts were delivered. The record does not show whether the sum then paid has been returned or offered to be returned to the plaintiff.

The sole defense interposed is that Julius Teckemeyer, at the date .of his death, was not a member in good standing, by reason of his failure to pay three assessments, of four dollars each, the first of which fell due June 10, 1893, the second July 10, 1893, and the third August 10, 1893. It was proved that about August 3, 1893, the member paid five dollars to the defendant, which paid the assesment due June 10, 1893, and one dollar of the assessment due July 10, 1893; sa that at this date (about August 3, 1893) Julius Teckemeyer was recognized as a member, Notwithstanding the fact that the assessment due June 10, 1893, was twenty days in arrear. The refendant had not then expelled or suspended Teckemeyer, or refused to recognize him as a member in good standing, but received from him one dollar on the assessment due July 10, 1893, which was the only one then in arrear. By receiving payment of one-fourth of the assessment due July 10th, the defendant waived the payment thereof on the day it was due, and recognized the right of the member to thereafter pay the three dollars unpaid thereon.

The defendant’s constitution provides that the financial secretaries of protection councils shall give notice and receive payments of assessments levied on the members of such councils (Const. art. 7, § 6), and pay over the moneys to the supreme secretary of the defendant, whose duty it is to levy assessments, receive payments thereof through the secretaries of the protection councils, and transmit the moneys to defendant’s supreme treasurer. Const. Supreme Council, art. 4, § 11. Between July 1, 1885, and April 1,1893, fifty-thee assessments were levied on this member. One -was paid when due, the dates when two were paid dp not appear, and fifty were paid to the financial secretary of Protection Council, No. 38, at dates varying from two days to six months after they were due, and were transmitted by the financial secretary to the defendant’s supreme secretary, and by him turned over to the supreme treasurer. These facts were established by undisputed evidence, and they would have justified the court in holding, as a matter of law, that these officers were authorized to accept from members payment of assessments after they became due, and were sufficient to authorize the jury to find that the secretary of Protection Council, No. 38, was authorized to extend the time for the payment of assessments levied on this member.

It was conceded that for three years, including 1893, Otis F. Simmons was the financial secretary of Protection Council, No. 38, and that during that time his wife “was authorized to act for him in the business.” During these three years the assessments levied on this member were usually paid by his wife, and generally to the wife of the financial secretary, who gave receipts for such payments, which were signed in blank by the secretary, and were filled out by her. Hone of these facts were questioned by the defendant. These facts being established, the plaintiff offered' to show that, when she paid the assessments due in April, May, and June, 1893, to the wife of the financial secretary of Protection Council, No. 38, she said that if the other assessments were paid on or before August 20, 1893, such payment would be in time, and would be received. The defendant objected to this evidence, the objection was sustained, and the plaintiff excepted. There is no provision in the certificate which prohibits the officers of the defendant or the financial secretary of Protection Council, No. 38, from extending the time for the payment of assessments, and our attention has not been called to any such prohibition, nor do we find any in the constitution, by-laws, or regulations of the defendant.

In the absence of such a prohibition, and under the facts proved 'and admitted, it was competent for the plaintiff to show that the wife of the financial secretary of Protection Council, No. 38, while duly acting for the secretary, extended the time for the payment of the assessments until August 20, 1893. Had such an agreement been testified to, the case would have presented two questions of fact: (1) Was the financial secretary of Protection Council, Ho. 38, authorized to extend the time for the payment, by this member, of his assessments? (2) Did the wife of the financial secretary, while duly engaged in discharging his duties, agree to extend-the time for the payment of the assessments levied on this member until August 20, 1893? Had these two issues been found for «the plaintiff, she would, under the evidence in this record, have been entitled to recover on her certificate. Homer v. Insurance Co., 67 N. Y. 478; Powers v. Insurance Co., 83 Hun, 254; 64 St. Rep. 263; affirmed 145 N. Y. 654; 67 St. Rep. 868; Classey v. Insurance Co., 84 Hun, 350; King v. Association, 87 Hun, 591; 68 St. Rep. 520.

The plaintiff’s exceptions should be sustained, and a new trial granted, with costs to abide the event.

Motion for a new trial granted, with costs to abide the event.

All concur.


source: Caselaw Access Project

author: WOODWARD, J.

license: Public Domain

text:
    John A. Matthews, Pl'ff, v. John J. Young et al., Def'ts.
    (Supreme Court, Erie Special Term,
    Filed April, 1896.)
    1. Mechanic’s lien—Waiver.
    A contractor or material man may waive his right to resort ta the statutory provisions allowing a mechanic’s lien to be placed on the property.
    2. Same.
    A covenant not to file a lien is valid, though the owner has failed to perform the stipulations to pay for the work and labor at the time mentioned in the contract.
    William L. Jones, for pl’ff; Petrie, Timmerman & Pardee, for def’t Pardee.
   WOODWARD, J.

The plaintiff is a carpenter and contractor. The defendant Young was the owner of a lot in the city of Buffalo, upon which he was, in the summer of 1895, erecting three houses. In December, 1894, the plaintiff and the defendant Young entered into a written agreement, by which the plaintiff agreed to do the carpenter work on each of the three houses for the stipulated price of $1,387.50, and the defendant Young was to furnish the material. The work was to be completed by the 1st day of April, 1895. The times of payment are stated in the contract, the last payment to be made when the houses were completed. On the 1st day of May, 1895, Young conveyed one of the lots, on which the house last completed was erected, to the defendant Pardee, and the deed was recorder in Erie county clerk’s office, June 17, 1895. On the 31st day of July, 1895, the plaintiff attempted to place a mechanic’s lien on the building last completed, claiming there was due and unpaid on the contract, that day, the sum of $280.08 for work and labor which he had done. The property .described, upon which the plaintiff sought to fix a lien, was the part of-the lot upon which the house last completed stood. The statute under which the lien was filed is chapter 342 of the Laws of 1885. For the purpose of disposing of this case the fact is found that, when .the notice of lien was filed, there was due and unpaid the plaintiff from the defendant Young, upon the contract entered into between those parties, the sum of $50 and upwards, and some of the labor done by the plaintiff upon the house and lot sold to the defendant Pardee was after the latter received his deed, and was done with his knowledge and consent. The defendant Young made default, and did not answer.

In disposing of the case, it is unnecessary to examine with close attention the evidence bearing on the questions whether the work was done and performed according to the terms of the contract, and whether the plaintiff was delayed because the defendant Young did not supply the material so that the work could be completed within the time mentioned in the contract. Both of those questions are, pro forma, determined in the plaintiff’s favor for all the purposes of this action. At the time of mairing the agreement, and as one of the terms of the same, the plaintiff entered into a covenant with the defendant Young, stipulating that he would not place on file any lien on the buildings for the work and labor he was to perform. The covenant is in these words: “It is also agreed and expressly understood that the party of the first part shall file or place no liens on the above-described buildings for work herein contracted for.” This is a plain and independent covenant, one which the plaintiff had the right to make, and all interested parties may demand of him its strict observance; and, as a matter of law, the plaintiff never had any lien, as provided by the statute in his favor, against the defendant Young, or his grantee, the defendant Pardee. It is a familiar principle that a party of full age, acting in his own right, can waive a statutory or even a constitutional provision in his own favor, simply affecting his property or alienable rights, and not involving considerations of public policy. Phyfe v. Eimer, 45 N. Y. 104, and the cases there cited. In other cases the same proposition is briefly and tersely stated as follows: “A party may waive any right, created -by statute, intended for his benefit and advantage.” Tombs v. Railroad Co., 18 Barb. 585; Buell v. Trustees of Lockport, 3 N. Y. 197. The statutory provision allowing a contractor to place a lien on buildings upon which he has done work as a security for his payment is clearly intended to protect the contractor .against the insolvency of the owner, or his neglect to pay the contractor for his work and labor according to the terms of the agreement. The rule that a party may release a statutory remedy created for his benefit and to protect him in his rights has been frequently applied and enforced where a contractor or material man has waived his right to resort to the statutory provisions allowing a mechanic’s lien to be placed on the property. In Scheid v. Rapp, 121 Pa. St. 593, the contractor covenanted, “ for himself, bis heirs, executors, and administrators, that he will not suffer or permit to be filed any mechanic’s lien or liens against any of the said buildings for the period of six months after its completion”; and the court held that the effect of such a covenant was to waive the right to file or authorize a lien to be filed in his own favor. The case of Long v. Caffrey, 93 Pa. St. 526, is to the same effect. The authorities on the question of waiver are collected m 15 Am. & Eng. Enc. Law, p. 104, where it is stated that “the right to mechanic’s lien for labor or material furnished for the erection or labor on a building may be waived by an agreement either express or implied.” See, also, Bowen v. Aubrey, 22 Cal. 566.

The suggestion of the counsellor the plaintiff that the covenant not to file lien did not apply, and did not restrain the contractor after the owner had failed to perform the stipulations to pay for \ the work and labor at the time mentioned in the contract, cannot be recognized as sound: for the covenant is an independent one. continuous and unconditional. It is manifest that in this caso the owner exacted this covenant that he might he able to sell all or either one of the houses before they were completed, and give the purchaser title exempt from a mechanic’s lien. It will be observed that the covenant was specific that the contractor would not, for himself, put a lien upon the buildings, which' he has sought to do in violation of his promise.

As to the defendant Pardee, the plaintiff’s complaint is dismissed upon the merits, with costs and disbursements the same as are allowed in civil actions in this court. As against the defendant Young, who made default, the plaintiff is at liberty to proceed and enter up such judgment against him as he is advised he may be entitled to. See section 15, c. 342, Laws 1885.

Ordered accordingly.


author: FOLLETT, J.

text:
    Warsaw Waterworks Company, App'lts v. Village of Warsaw et al., Resp'ts.
    (Supreme Court, Appellate Division, Fourth Department,
    Filed April, 1896.)
    Injunction—Pendente lite.
    Where all of the equities of the complaint are denied in the answer, an injunction pendente lite will not be continued where plaintiff's right to the ultimate relief sought is not clearly established.
    Appeal from an order vacating a temporary injunction.
    Eugene M. Bartlett, for app’lt; I. Sam. Johnson and Adelbert Moot, for resp’ts.
   FOLLETT, J.

On the 17th of November, 1895, a temporary injunction was granted "by a justice of this court restraining the defendant “from removing any hydrants from plaintiff’s mains, threatening any of its customers with discriminating taxes, or-soliciting any of its patrons to disconnect their service pipes from this plaintiff’s mains, or disconnecting any such service pipes, or in any manner interfering with this plaintiff’s exercise or enjoyment of its rights, privileges, and franchises.” Upon a motion, made at special term in December, 1895, this injunction was vacated, and the plaintiff appeals to this court.

The questions involved in this action cannot be satisfactorily decided until the issues of fact have been tried and determined, and we ought not and will not attempt to define and settle the ultimate rights of the litigants on affidavits, and, without expressing any opinion upon the questions involved, further than to say that the rights asserted by the plaintiff as the foundation for the relief sought are not so clearly established in the affidavits as to authorize this court to restore and continue the injunction pendente lite. It is conceded that the hydrants which were purchased by the defendants and attached to the plaintiff’s line of water pipes have been removed by the defendants, and, it not being clearly established that the defendants have threatened or now threaten to do any of the things restrained by the original injunction order, it should not be restored. Besides, all of the equities of the complaint are denied in the answer, and in such a ease an injunction pendente lite will not be continued where the plaintiff’s right to the ultimate relief sought is not clearly established.

The order is affirmed, with $10 costs and printing disbursements.

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


author: PER CURIAM.

text:
    Amelia Mahro, by Guardian, etc., Resp't, v. Greenwich Savings Bank, App'lt.
    (Supreme Court, Appellate Term, First Department,
    Filed April, 1896.)
    Savings Bank—Interpleader.
    In all actions against any savings bank to recover for moneys on-deposit therewith, if there are any person or persons, not parties-to the action, who claim the same fund, the court in which the action is pending may, on the petition of such savings bank, make an order amending the proceedings in the action by making such claimants parties defendant thereto.
    Appeal from an order of the city court, affirming an order denying a motion to interplead.
    G. W. Wickersham and Joseph H. Gray, for app’lt; A. B. Osgoodsby, for respondent.
   PER CURIAM.

We must reverse the order appealed from, and grant the defendant’s motion for leave to bring in the party named in the petition. The order of the general term and special term are reversed. It appears from the record that this application was disposed of by the general term, and by the special term of the city court, on the theory that it was an application for interpleader; whereas, it was a motion under chapter 689 of the Laws of 1892, providing (section 115) that in all actions against any savings bank to recover for moneys on deposit therewith, if there be any person or persons not parties to- the action, who claim the same fund, the court in which the action is pending may, on the petition of such savings hank, make an order amending the proceedings in the action by making such claimants parties defendant thereto. It appears that the person named in the petition of the hank claimed the fund in suit, and the motion should be granted, with $10 costs and disbursements of this appeal.

Order reversed, and motion granted, with $10 costs and disbursements.


text:
    Osgood V. Tracy et al., Resp'ts, v. G. H. Hammond Company et al., App'lts.
    (Supreme Court, Appellate Division, Fourth Department,
    Filed April, 1896.)
    1. Assignment—Rights ov parties.
    In case oí a collateral assignment, the assignor still has an interest in the property which he can transfer by a second assignment.
    2. Same.
    An assignment, though collateral, is ineffectual, where it has no debt to rest upon.
    Appeal from a judgment rendered in favor of plaintiffs.
    The opinion of Hr. Justice VANN at special term is as follows:
    On the 16th day of August, 1893, the defendant Theresa H. Christian assigned to the defendants Thomas Lane and Frank Moore her book accounts and bills receivable “as collateral securtiy to secure them for any indebtedness due or owing them from me, with full authority to sue and collect the same, in my name, or otherwise, and when such indebtedness shall be fully paid, then this assignment shall be null and void, and the balance of said accounts shall revert to myself, my heirs and assigns.” On the 17th of August, 1893-, said Christian assigned to the plaintiffs “all book accounts and bills receivable owing to me, of every name and nature, subject to a prior assignment thereof to Thomas Lane and Frank Moore, made as collateral security for my indebtedness to them; and when the claim of said Lane & Moore is satisfied, J au-thorize the said O. V. Tracy & Co. to sue and collect the .said, accounts, in my name or otherwise, and apply the proceeds thereof upon my indebtedness t<> said O. V. Tracy & Co., and, when the same shall be paid, this assignment shall be void.” On August 19, 1893, the defendant, the G. H. Hammond Company, obtained an attachment against the property of Mrs. Christian, and the same was duly levied upon the accounts in question, which are of the face value of about $1,500, and of the actual value of about $800. Subsequently the G. H. Hammond Company, through an action brought in this court in the nature of a creditors’ bill, caused said assignment to Lane & Moore to be set aside as fraudulent and void, and the lien of its attachment on said' accounts to be adjudged superior to their rights. The object of this action is to procure a judgment declaring the rights of the plaintiffs to be superior to those of the Hammond Company.
    The first question arising for decision is whether the assignment to the plaintiffs was executed and delivered to them prior to the levy of said attachment. This presents a question of fact which I have decided in favor of the plaintiffs, as the weight of evidence in my opinion tends strongly in that direction. The appellants, however, contend that, as the first assignment was valid as between the parties, it was equally binding upon their assigns, and that Mrs. Christian could not, by a voluntary act of hers, transfer to the plaintiffs a right which she did not possess herself. Brownell v. Curtis, 10 Paige, 210, 219; Storm v. Davenport, 1 Sandf. Ch. 135, 137; Bynum v. Miller, 86 N. C. 559. If the assignment to Lane & Moore had been absolute, so that the plaintiffs would be compelled to procure it to be set aside as fraudulent, in order to establish a prior right to the accounts, the position of the appellants would be without force under the authorities cited. But the assignment was only as collateral security, not for a debt specified or described, but “for any indebtedness due or owing from” the assignor to the assignee. The instrument of transfer does not assert, except by implication, that any debt existed, as, in fact, none did exist; for, by mistaken conception of right, rather ithan with actual fraudulent intent, the debt intended to be se¡cured was, not that of the assignor, but of her husband. Obviously, Mrs. Christian had something to assign, to wit, what remained after the debts owing by her to Lane & Moore were paid. 'That interest belongs to the plaintiffs, and they can ask the court to protect it without attacking the first assignment, but standing on it, and acting, not in hostility, but in subordination to it. They had a right to an accounting to ascertain the amount of the indebtedness of Mrs. Christian to Lane & Moore, and to have the remainder of the fund awarded to them. It so happens t-hat there was no indebtedness between the parties named in the first assignment, and hence the plaintiffs are entitled to the whole of the proceeds -of the accounts, not exceeding the amount of their debt. They took title subject to the title of Lane & Moore. If the latter had a debt against their assignor, the plaintiffs, on extinguishing it by payment, would have had absolute title to the extent of their debt. The same result follows from the fact that Lane & Moore had no debt to be secured. They took nothing, and the plaintiffs stand next in order, without raising the question of fraud in the first transfer, but simply claiming that it was ineffectual, because, although a collateral assignment, it had no debt to rest upon. Eecognizing it as a valid instrument, as distinguished from one fraudulent and void, they say to Lane & Moore, in substance: “Take out your debt and give us the balance.” But the answer must be “We have no debt.” “Then,” the plaintiffs say, “We are entitled to the whole.” And I see no answer to the position, for the plaintiffs have no claim with reference to the first assignment that Mrs. Christian might not lawfully have made herself. While this may not be consistent, with the theory of the complaint, it is a logical and necessary result from the conceded facts.
    There must be judgment accordingly, but as Hammond & Co. shook the bush, while the plaintiffs get the,bird, with costs payable out of the fund only.

      Benjamin Stolz and Wm. S. Jenney, for app’lts; William G. Tracy, for resp’ts.
   PER CURIAM.

Judgment affirmed, with costs, on the opinion of VANN, J., delivered at special term.


author: PRYOR, J.

text:
    Bernard Cohen, Pl'ff, v. William B. Waldron, Def't.
    (Supreme Court, New York Special Term,
    Filed July, 1896.)
    1. Usury—Purchase.
    The purchase of a valid, subsisting security, at auy discount, may be made with impunity.
    2. Same.
    In such case, a loan of money by the plaintiff to the defendant,, with the security as collateral under the guise and color of a purchase and sale, must be shown by clear and satisfactory evidence.
    3. Same.
    Parties have a perfect right to deal with each other with the-usury laws before their eyes, and to so shape the transaction as to escape the condemnation of such laws.
    4. Same—Burden oftrooe.
    In establishing usury, the defendant assumes the burden by affirmative proof, as all the presumptions are in favor of the legality of the contract.
    John Frankenheimer, for pl’ff; Frederick E. Anderson, for def’t.
   PRYOR, J.

To avert a threatened foreclosure of a mortgage on his property, defendant had this transaction with the plaintiff: Upon payment of the mortgage debt, less ten per cent, discount,, plaintiff took an assignment of the mortgage. With the knowledge of plaintiff, defendant paid the mortgagee the ten per cent, balance, whereupon plaintiff extended the mortgage for another year. In the action to foreclose, defendant pleads usury. Upon its face the transaction is clear of usury. In form, it is a purchase of a valid, subsisting security; and by all authorities,, such a.purchase, at any discount, may he made with impunity. Denham v. Cudlipp, 94 N. Y. 129; Saving Inst. v. Wilmot, Id. 221. In every circumstance the case is identical with Siewert v. Hamel, 91 N. Y. 199, and unless it appear that the ostensible sale of the mortgage was “a mere contrivance to evade the statute of usury, and was in fact a loan by the plaintiff to” Waldron (page 201), no defense to the action was developed. It is not .enough that “the plaintiff entered into the transaction for the purpose of securing more than the legal rate of interest on his capital” (page-201), but “a loan of money by the plaintiff to the defendant, with the bond and mortgage as collateral under the guise and color ol a purchase and sale of -a chose in action” (page 201), must he shown by “clear and satisfactory evidence.” White v. Benjamin, 138 N. Y. 623; 52 St. Rep. 151. In Seiwert v. Hamel, supra, a test of the illegal character of the transaction, as propounded by Andrews, C. J., is that “it originated in an agreement for a loan;” but here the fact is not clear upon the proofs. By the testimony of Hirsch—the only witness not open to suspicion of bias—it appears that the plaintiff contemplated a purchase from the beginning of the negotiation with the defendant. The defendant himself, in his original answer, alleged that he “did request the plaintiff to purchase the aforesaid mortgage, and take an assignment thereof.” notwithstanding the explanatory evidence introduced to extenuate the effect of this admission, I cannot bin regard it as credible and cogent proof of the intended transaction. Assuming, however, that the parties originally contemplated a loan by plaintiff and a new mortgage to him for security, the proof is quite conclusive that they abandoned the project, and substituted instead a purchase and assignment of the mortgage. “Ho doubt the plaintiff wanted to get more for his money than simple interest. But he knew the statute of usury, and did not intend to come within it. Ho doubt, also, there was then suggested a plan whereby he might keep outside of the statute, and still obtain a return for his° investment greater than the rate allowed by it. There is no law against that.” Dunham v. Cudlipp, 94 N. Y. 135. “In one sense the transaction took this form for the purpose of escaping usury. But the parties had a perfect right to deal with each other with the usury laws before their eyes,- and to so shape the transaction as to escape the condemnation of those laws.” Saving Inst. v. Wilmot, 94 N. Y. 221, 227. The assent of defendant to the substituted arrangement is,apparent from the execution of the agreement of Hovember 2, 1894, and other evidence. Defendant’s position, then, is this: He does not impugn the legality of the actual transaction, but urges that the agreement between the parties was for another and illegal transaction, vffiich, though renounced and unexecuted, pevertheless invalidates its substitute, the actual and legal transaction. The bare statement of the proposition suffices for its refutation. In Wyeth v. Braniff, 84 N. Y. 627, the authority upon which defendant relies, the loan was indisputable,—an essential fact, absent from the case under review. “If there was no loan, and no corrupt agreement for forbearance, there can be no usury.” Sweeney v. Peaslee (Sup.), 42 St. Rep. 485; Meaker v. Fiero, 145 N. Y. 165; 64 St. Rep. 579; Siewert v. Hamel, 91 N. Y. 201. The case is not free from doubt, but. mindful of the proof requisite to show usury, I am not content that the defense is established. “The defense of usury being an affirmative proposition to be established by the defendant, he assumes the burden of establishing it by affirmative proof, as all the presumptions are in favor of the legality of the contract; and if, upon the whole case, the evidence is as consistent with the absence as the presence of Usury, the party alleging the usury must fail.” Sweeney v. Peaselee (Sup.), 42 St. Rep. 485; Stillman v. Northrup, 109 N. Y. 473; 16 St. Rep. 417.

Judgment for plaintiff, with costs.


author: McLAUGHLIN, J.

text:
    People ex rel. Josephine Duchaine, Pl'ff, v. Coon, Def't.
    (Supreme Court, Essex Special Term,
    Filed June, 1896.)
    1. House of refuge—Discharge—Rearrest.
    A prisoner conditionally discharged from the House of Refuge for Women at Hudson before the .expiration of the term for which she was sentenced can, after the expiration of the term, be rearrested and again committed and detained for a time equal to the unexpired portion of her term at the time she was conditionally discharged.
    2. Same.
    A prisoner, who escapes from the institution and is recaptured, is treated in the same manner as one who has been conditionally discharged and returned.
    Application for writ of habeas corput by relator to procure her discharge, on the ground that her imprisonment is illegal and void.
    David H. Agnew, for relator; J. Rider Cady, for resp’t.
   McLAUGHLIN, J.

On the 11th day of April, 1889, the relator was convicted of being a complete prostitute, and sentenced to the House of Refuge for Women at Hudson, N. Y., “for a term of five years, unless sooner discharged by the board of managers thereof.” In pursuance of this sentence, she was committed to the House of Refuge on the 15th day of April, 1889, and there remained until the 14th day of January, 1892, when she was conditionally discharged therefrom. Had she remained in the institutiofi or the conditional discharge not have been given, the five yearn for which she was sentenced would have expired on the 11th day of April, 1894, at. which time she would have legally been entitled to her discharge. On the 7th day of December, 1895, she was rearrested, by virtue of a warrant of rearrest issued by the board of managers, and again committed to this institution, for having violated the conditions of the discharge previously given to her.

The sole question presented by this application is whether a prisoner conditionally discharged from the institution in question before the expiration of the term for which she was sentenced can, after the expiration of the term, be rearrested, and again committed and detained for a time equal to the unexpired portion of her term at the time she was conditionally discharged. Reference to the statute bearing on the subject leaves little room for discussion as to the proper answer to be given to the inquiry thus made. The language used, if any meaning be accorded to it, clearly and unmistakably indicates a legislative intent to confer such power on the board of managers.. The statute is as follows:

“Subdivision 1. The board of managers of said House of Refuge shall have power to cause to be detained therein, under suc-li proper rules and regulations as said board shall provide, any female so committed thereto, according to the terms of said sentence and commitment, and to conditionally discharge any inmate so sentenced and committed at any time prior to the expiration of said five years, and to cause the rearrest in any county of this state, and return to said House of Refuge1, of any person who may have escaped therefrom, or has been conditionally discharged therefrom, as herein provided, and in any case of such rearrest and return to detain her as aforesaid from the time of such return, for a time equal to the unexpired portion of her term, at the time of her said escape or conditional discharge.”
“Subd. 3. Any person having been conditionally discharged from said House of Refuge may be arrested and returned thereto upon a warrant signed by the president and attested by the secretary of said board, which warrant shall briefly state the reasons for such arrest and return, and shall be directed and delivered to any person employed by said board of managers to convey to said House of Refuge persons committed thereto, and when so-signed, attested and delivered, may be executed by such person in any county in this state.”

Section 8, c. 187, Laws 1881, as amended by subdivisions 1 and 3, § 3, c. 704, Laws 1892.

Indeed, it seems to me that no other construction can be given to this statute without eliminating the words, “and, in case of such rearrest and return to detain her * * * for a time equal to the unexpired portion of her term at the time of her * * * conditional discharge.” A prisoner who escapes from the institution, and is recaptured, is treated in the same manner as one who has been conditionally discharged and returned. A conditional discharge may be granted at any time within the period for which the person is sentenced. A prisoner may escape at any time during that period. Ho serious contention could be made that a prisoner who had escaped from the institution prior to the expiration of the original sentence, and was thereafter captured, could not be compelled, under the statute, to serve out the unexpired portion of her term. In the one case the prisoner is at liberty by virtue of her own act, while in the other she is at liberty by virtue of the act of the board of managers. The board of managers may grant a conditional discharge at any time within the five years; and, if the person discharged conducts herself properly,—that is, lives according to the terms and conditions of the discharge,—the discharge may, in practical effect, be a final and unconditional one. The prospect of an early conditional discharge is an incentive to good behavior while in the institution. The prospect of rearrest and return to the reformatory in case of misbehavior thereafter is equally strong as an inducement to the leading of an orderly life, and must, of necessity, have a deterring effect to a return to evil ways. Mo good reason can be suggested why, if an inmate conditionally discharged shall thereafter return to viciousness, she should not be retaken, and compelled to serve out the unexpired portion of her sentence, although she be retaken and confined after the expiration of five years from the date of the imposition of the sentence. This seems to be the policy of the statute. It certainly is its natural, and, I believe, its true, construction. However, it is not for the court to pass upon the policy of this statute, but it discharges its duty by construing it, and, if it is not a wise one, then it is for the legislature to change it, and not for the court.

The proceeding is dismissed, and the relator remanded to the custody of the institution.


author: WILLIAMS, J.

text:
    People ex rel. Henry C. Corsa, Resp't, v. George E. Waring, as Commissioner, etc., App'lt.
    (Supreme Court, Appellate Division, First Dept.,
    Filed June 29, 1896.)
    1. Municipal corporations—Employe—Dismissal.
    An employe in the street cleaning department is.net entitled to the protection of the veteran act, but the power to dismiss is given by the street cleaning act.
    2. Same.
    No particular species of evidence is required under the latter act to enable the commissioner to dismiss an employe.
    Appeal from an order granting a peremptory writ of mandamus.
    The relator, having been removed from his position by defendant, was reinstated August 22, 1895, and directed to- report for duty on the. next day to the superintendent of street cleaning. August 29, 1895, the superintendent reported to defendant that the relator had been absent from duty without leave since August 23, 1895. Thereupon the defendant on the same day, for this reason, dismissed relator from'the service. The relator was an honorably discharged soldier who had served in the Union army during the war of the Rebellion. Upon motion the court made an order directing the issue of the peremptory mandamus. From that order this appeal is taken.
    Francis M. Scott and James M. Ward, for app’lt; Charles Blandy and Louis C. Freeman, for resp’t.
   WILLIAMS, J.

The order appealed from must he reversed. People v. Waring, 1 App. Div. Rep. 594, decided by this court, affirmed by court of appeals, 44 N. E. 000, is conclusive upon all the questions involved in the present case. We held in that case that the relator was not entitled to the protection of the veteran act, in reliance upon which the court made the order here appealed from, but the power to dismiss was given by the street-cleaning act. We also held in that case that no particular species of evidence was required under the street-cleaning act to enable the commissioner to dismiss the relator. It was only required to be satisfactory to the head of the department. In that case the deputy commissioner recommended in writing that the relator be dismissed on charges and specifications, and the commissioner believed the charges to be true upon information he received, and ¡this we held was sufficient. Here the superintendent reported pie relator had been absent from duty for five days without leave, land it was-true. There was dispute as to whether he was absent by some arrangement between the commissioner and relator’s attorney, but we do not think the court could determine whether the evidence on which the commissioner acted in dismissing relator was satisfactory to him. And, moreover, the decision of the court was not put on such ground, but on the ground that the relator was protected under the veteran act, which was untenable.

The order appealed from should be reversed, and the writ dismissed, with costs.

All concur.


text:
    Victor Steiner, App'lt, v. Myer Hellman, Resp't.
    (Supreme Court, Appellate Division, First Dept.,
    Filed June 29, 1896.)
    Pleading—Amendment.
    Where the plaintiff sets up, but fails to establish, a written contract, the specific performance of a contract partly written and partly oral cannot, without amendment, be enforced.
    Appeal from a judgment entered on a decision dismissing the complaint on the merits.
    The action was brought to compel the specific performance of a written contract for a lease of real property. The complaint alleged a written contract for a lease of the ground floor and basement of a building for the term of three years. Ho such contract was proved on the trial. The only writing given in evidence was a receipt signed by defendant for $25 paid by plaintiff as a deposit on account for store, said amount to be credited to May rent; rent to be $70 per month, in advance, from May 1, 1895. Ho term was specified, and no agreement to give any written lease. Both parties gave parol evidence as to what took place with reference to the leasing of the property, what the term was to be, and whether an additional floor of the building was finally agreed to be included in the property to be leased. Plaintiff took possession of the two floors and basement, and occupied them. A lease of the whole for the term of three years was made out and sent by defendant to plaintiff, with the request that he execute and return duplicate. Plaintiff refused to accept such lease, or to sign and return duplicate, and it was finally returned to defendant. The plaintiff claimed that he should have a lease of the ground floor and basement alone for three years, and that be was to lease the other floor for no particular term. The defendant claimed that the plaintiff was to lease the whole together for the three years. It was not claimed that this agreement was perfected at the time the' receipt for the $25 was given, but that no term was then agreed upon as to the store, and by agreement after that the base» ment and first and second floors were to be leased together for three years. The court denied the plaintiff the relief asked for.
    George C. Coffin, for app’lt; William C. Wolf, for resp’t.
   WILLIAMS, J.

We see no reason to disturb the judgment entered upon the .decision of the trial court. The plaintiff entirely failed to establish a written contract for a three-years lease, as alleged in the complaint. There was no amendment made to the complaint, so as to allege a contract partly written and partly parol, which was sought to be enforced; and without such amendment, certainly, the plaintiff could not have the relief asked for. If such amendment had been made, the defendant would have had the right to answer such amended complaint, and could then have interposed the defense of the statute of frauds, which the court of appeals seems to have held must be pleaded in order to be taken advantage of. The court took all the evidence, however, and then determined the case upon the facts; holding that, even considering the parol evidence, there was no contract for a lease for three years of the basement and first floor alone so satisfactorily shown as to authorize the court to compel specific performance thereof. The evidence was conflicting, and, considering the parol evidence and the documentary evidence appearing in the records altogether, we quite agree with the learned trial judge that the plaintiff did not make a case entitling him to the relief sought.

The judgment appealed from should be affirmed, with costs.

All concur.


text:
    Sooysmith and Company, App'lt, v. Clarence H. Venner, Resp't.
    (Supreme Court, Appellate Division, First Dept.,
    Filed June 29, 1896.)
    Contracts—Interpretation.
    Where plaintiff, after defendant, in constructing a well, had sunk a forty-two inch pipe to a depth of fifty-two feet and was unable to proceed further with the work, agreed to sink a thirty-eight inch tube to a proper depth in a water bearing stratum, and by means of Portland cement or other suitable material, bar out quicksand between the bottom of the present tube and the stratum of hardpan, such provision was construed not to require plaintiff to do any act in carrying out the contract which was impossible in the ordinary way in which such work was to be done, and, therefore, to require him only to bar out the quicksand from the tube' by securely joining the two tubes together at their juncture with each other.
    Appeal from a judgment rendered in favor of plaintiff.
    The action was brought upon a written contract between the parties to recover the amount agreed to be paid by the defendant for the performance by the plaintiff of the-work provided for under the contract. The defense was that the work had not been completed by the plaintiff in accordance with the terms of the contract. The contract was made June 15, 1888, and recited that the defendant was desirous of building a well, to enable the Adrian Michigan Waterworks to supply the city of Adrian with, water; that there was a well on the premises of the waterworks, in which there was sunk a boiler-iron tube, 42 inches in diameter, to a depth of about 50 feet below the bottom of the well; that defendant desired to procure an extension of that tube to- be sunk down to and into the water-bearing stratum, which was believed to exist at a depth of within 6 or 7 feet below the bottom of the present tube; that it was intended to make such extensions by means of a 38-inch tube by the pneumatic system; and that the bottom of the present 42-incli tube was in quicksand, and it was believed that a¡. a distance of from 1 to 2 feet there existed a stratum of hard pan from 1 to 2 'feet in thickness, and below that there was the water-bearing stratum; and it was agreed that the plaintiff would provide the necessary 38-inch tube of three-eights in thickness iron, and all the appliances and machinery for sinking the same, and sink the 38-inch tube to such proper depth into the water-bearing stratum as in the judgment of plaintiff would best accomplish the result desired, provided, that- such depth should not exceed 7 feet below the bottom of the present tube. And that plaintiff would, by means of Portland cement, or other suitable material, bar out quicksand between the bottom of the present tube and the stratum of hard pan. * * * AH work to be done in a first-class and substantial manner. * * * And that upon the completion of the work * * * the defendant would pay the plaintiff the sum of $5,000 in full payment for the work and materials. * * * Under this contract the plaintiff furnished the materials and did the work, but the defendant refused to pay the $5,000, on the ground that the work was not done and completed as required by the contract. Quicksand entered the tube, and filled it up to a considerable depth, and it was claimed this resulted from a failure by plaintiff to eompíete the work as provided by the contract,, or from the improper or negligent manner in which it was done. The plaintiff did so join together the ends of the 42 and the 38-inch tubes as to prevent any quicksand entering at that junction, and the quicksand eoncededly entered the tube from the lower end of the 38-inch tube in the water stratum; but the defendant claims that the quicksand descended from above the hard-pan stratum, on the outside of the tube, and that it was the duty of the plaintiff, under the terms of the contract, to prevent such quicksand from going down through the space between the tube and the hard-pan stratum, and entering the pipe below the tube through the water stratum. It seems also to be claimed that the filling of the tube with quicksand from below, even, resulted from the improper performance of plaintiff of the work, and the removal of the appliances from the tube and well. The referee held that the proper construction of the contract was that plaintiff should only bar out the quicksand from the tube by securely joining the two tubes together at their junction with each other, and was not required to bar the quicksand from passing down from above the hard-pan stratum, and between it and the tube, into the water stratum, and entering the tube at the lower end of the 38-inch pipe; and that there was no negligence in the performance of the work; and thereupon ordered the judgment in favor of the plaintiff, from which this appeal is taken.
    Melville Egleston, for app’lt; Frederic B. Jennings, for resp’t.
   WILLIAMS, J.

There seems to be no dispute but that the quicksand which filled the tube entered through the bottom of the 38-inch tube in the water stratum. There is dispute as to where the quicksand came from,—whether it was in the water stratum before the 38-inch tube was sunk, or whether it went down from above the hard-pan stratum during the time the work was being.done or after it was completed; and whether, if it went down from.above the hard-pan stratum, it went down through an opening around and next to the outside of the tube, or through other openings originally existing, or which had been made by defendant while smiting the 42-inch tube, or while making borings to ascertain the condition of things below the bottom of the 42-inch tube. It cannot reasonably be claimed that the duty of the plaintiff to prevent, the quicksand from going down from above the hard-pan stratum extended -beyond the closing up of any opening around and next to the 38-inch tube, so as to prevent sand going "down there. Cosidering the manner in which the 38-inch. tube was sunk, and the work was done, it is quite doubtful whether any opening was left about the tube through which the quicksand could have found its way into the water stratum below, and whether the nresence of the quicksand in the tube should not be accounted for in one of the other ways suggested. But, whether this be true or not, there seems to have been no way, considering the manner in which the work was done, in which any opening’ outside the 38-inch tube, and between it and the hard-pan stratum, could, by the use of Portland cement or other suitable materials, have been closed up. The only place in which such material could have been applied was between the 38-inch and the 42-inch tubes by way of making joints between the two sized tubes firm and solid, so as to prevent quicksand entering the tubes at that point. The connection with the hard pan was necessarily made by sinking the 38-inch tube through it, and there was no way in which material could be applied outside the 38-inch tube so as to strengthen such connection between the tube and the hard pan next to it. The contract could be construed in view of these considerations. It could not well be said that the parties intended the plaintiff should do any act in carrying out the contract which was impossible in the ordinary way in which such work was to be done. The construction of the contact claimed by the plaintiff seems to have been concurred in by the defendant. Underwood, writing for defendant the letter of July 25, 3888, said:

“ * * * On taking out the sand, the joint between the 42 and 38 inch pipe, which was a part of your contract to make, was found to be gone, and this accounted for the presence of the sand in the tube. I want nothing but what is fair, but I want to know that the tube is tight; that the joint is well made, so that the sand won’t come in; and there is no way of ascertaining that fact without making a test of the tube with the air taken off. * * * 'The very object of the tight joint was to keep out the quicksand just* above the hard pan, as you will see by referring to the contract.”

In view of the suggestion here made, and of the reasons stated by the learned deferee in his opinion, we regard the construction given by the referee to the clause of the contract in question as the proper one, and we see no reason to doubt the correctness of the decision made in the case. We concur in the conclusion arrived at by the referee that the proofs failed to establish any negligence on the part of the plaintiff in the performance of the work, rendering it useless and of no value.

The judgment appealed from should be affirmed, with costs.

All concur.


text:
    Herman Schiffer et al., App'lts, v. Edward Lauterbach et al., Resp'ts.
    (Supreme Court, Appellate Division, First Dept.,
    Filed June 29, 1896.)
    1. Agiieement—When complete.
    Where the intention of both parties is that the agreement, when made and perfected at all, should be in writing, it never becomes operative unless executed.

      2. Equities—Specific performance.
    Where the plaintiff claims the right in his complaint to have-specific performance of a substituted agreement, or failing in that-, then specific performance of the original agreement, the fact that the substituted agreement is not a complete contract does not preclude him from obtaining the relief asked as to the original agreement.
    Appeal from a judgment entered on a decision dismissing the complaint.
    The action was brought to compel the specific performance of contracts. May 18,1888, the plaintiffs and. the defendants’ testator entered into a co-partnership under a written agreement, a copy of which is annexed to the complaint, and known as “Schedula A.” ' The firm name was Pelgram & Meyer, and the business-to be carried on was the manufacture and sale of silk goods, rib-, bons, and similar merchandise. The term of the copartnership was five years, commencing June 1, 1888. The defendants’ testator contributed as capital to the common stock, so called, $175,-000, and the plaintiffs contributed a like sum. The defendants’ testator also conveyed to the co-partnership the real property formerly owned by himself, or by the firm of Pelgram & Meyer, at the agreed valuation of $181,047.34; the machinery, fixtures, and appliances, and leasehold interest, at the agreed valuation of $315,000; the raw material, stock on hand, and manufactued goods, the value to be ascertained by inventory, at actual cost; and also all other assets on hand, cash, book accounts, etc. The conveyance of the property was subject to existing indebtedness by mortgage and otherwise. The amount of the net value of such property and assets over and above all the indebtedness was to be ascertained June 1, 1888, and to be considered as surplus capital contributed by defendant’s testator. The parties' were to be equal partners,—the plaintiffs having one-half interest, and the defendants’ testator one-half; and they were to receive 6 per cent, interest on the amount of common and surplus capital contributed by them, respectively, to be charged as an expense of the business. It was further agreed that when Aubrey E. Meyer, a son of‘ defendants’ testator, became 21 years of age, he should be admitted as a partner in the business, with such interest as his father should give him out of the capital contributed by the father to the co-partnership, and that the son should have a salary of $1,500 per year, to be charged to expense account, and in case the defendants’ testator died before the son, Aubrey, became a member of the firm, the son should have the same rights in the firm as though he had been a member, and had become at his father’s death a surviving partner. There were other provisions of the agreement •which it is necessary to refer to- here, and then, by subdivision 14, it was provided, in brief, that, if any of the parties should require the co-partnership to terminate at the end of the five years', they should, not less than six months before the expiration of the five years, serve upon all the parties a notice in writing subscribed by them, to that effect, and if no such notice should be served' the term should-be continued for another five years, and if no notice should be served at the end of the ten years the term should be again continued for another five years; and by subdivision 15 it was provided, in brief, that if any of the parties should die before the termination of the co-partnership, as created or extended, and the representatives of the deceased partner should, elect to terminate the co-partnership as provided in the agreement, ,the surviving partners should have the right to purchase all the ¡interest of the deceased partner in the property and business at a ¡valuation shown by the books, deducting 25 per cent, upon the ¡value of machinery, and should pay for the same in yearly installments of $50,000, with interest on the unpaid balance at four and one-half per cent., and secure such payment by a mortgage on the property.
    After the commencement of the co-partiiership, and August' ■24, 1888, the defendants’ testator died, leaving a will wherein he appointed defendants executors, and they qualified, and have since acted as such. The business was continued until the end of the first five years. After the death of the defendants’ testator, his son, Aubrey, asserted his right to become a member of the firm under the agreement A. Differences arose between him and plaintiffs and the other defendants as to their respective rights. Litigation resulted, and finally, on June 30, 1890, an agreement was entered into, a copy of which is annexed to the complaint, and is known as “Schedule B.” By this agreement it was provided that the plaintiffs should be regarded as the sole surviving partners'of the firm, and Aubrey, the son of the defendant’s testator, relinquished all his right to be a surviving partner, and to any interest in the firm as a partner; and it was agreed that the plaintiffs should continue the business as sole surviving partners until the end of the term, and that the plaintiffs should pay the son, Aubrey, every year after July 1, 1889, during the term of the co-partnership, the sum of $3,000, in installments of $1,500 each, payable January and July, so long as he lived, under certain conditions; that the son Aubrey might enter into the same kind of business, but should not use the firm name of Pelgram & Meyer, during the term of this co-partnership, except that he should have the sole right to the use of such firm name after May 31, 18$3, the end of the first five years, in case he should commence business and use such firm name within nine months thereafter, and should give six months’ notice of his intention to use such firm name. There were other provisions in this agreement which it is not necessary to refer to here. ¡November 28| 1892, the defendants, pursuant to subdivision 14 of the agreement A, gave notice in writing to the plaintiffs that they intended to terminate the co-partnership at the end of the first five years. May 29, 1893, the plaintiffs gave notice to the defendants, in writing, that they should purchase the rights of the defendants’ testator in the business and property, pursuant to subdivision 15 of the agreement A. The defendants seem to have acquiesced in the right to-so purchase, and thereupon the parties proceeded to ascertain the amount to be paid for such interest. An inventory was made,, but there was disagreement as to whether the amount arrived at, as the sum. to be paid by the plaintiffs, was correct, and as to other details in perfecting the sale and securing the purchase money. Negotiations were then entered upon between the plaintiffs and some of the defendants 'as to an agreement for the settlement of their differences, and such negotiations were continued for some time. An agreement in writing was finally formulated, a copy of which is annexed to the complaint, and is known as “Schedule 0.” This written agreement bears date in January, 1894. It was never signed -by defendant Ida Meyer ox defendant Aubrey E. Meyer. It was signed by defendants Lauterbach and Lowenstein, who were satisfied with its terms, but it was never delivered at all by any of the defendants. The plaintiffs alleged in their complaint that this agreement was made about March 21, 1894. The defendants denied that it was ever made, executed, or delivered at all, or that it ever became a binding agreement upon the defendants. The plaintiffs sought to compel specific performance of this agreement, or a parol agreement to the same effect, or that defendants be compelled to carry out the provisions of subdivision 15 of the original agreement A. The defendants alleged their willingness at all times to carry out the terms of subdivision 15 of the original agreement A, but that the plaintiffs had entirely failed to comply with such terms themselves. The court held that the agreement 0 was never made, executed, or delivered, and that no agreement by parol to the effect therein stated was entered into between the parties, and the same therefore could not be ordered to be specifically performed. The court held that there was-but one cause of action alleged, and that was one to compel specific performance of an agreement, the provisions of which were contained in the agreement 0, and that no relief could be afforded, based upon the provisions of subdivision 15 of the agreement A, the plaintiffs failing as to the agreement C. The court dismissed theccomplaint upon the merits, with costs, and from the judgment entered upon such decision this appeal is taken.
    Samuel Untermyer and Louis Marshall, for app’lts; John E. Parsons, for resp’ts.
   WILLIAMS, J.

We see no reason to disagree with the learned trial judge as to the conclusion arrived at by him, that the agreement 0 was never made, executed, or delivered, and that no agreement to the effect therein contained was actually made and. perfected between the plaintiffs and any of the defendants. "It is true that the agreement C. was negotiated by two of the defendants, and, as formulated, was satisfactory to them; but it seems quite clear that these two defendants never intended to make 0 a binding agreement by themselves, and without the concurrence of the other defendants, or to make any parol agreement to the same effect, or to make any parol agreement at all, and the plaintiffs did not suppose any such intention on the part of these two defendants ever existed. The intention of both the plaintiffs and these two defendants was that the agreement, when made and perfected at all, should be in writing; and they finally concurred in the agreement C as correctly expressing the agreement which the four parties desired should be made, executed, and delivered. It could not be said, fairly, under the evidence,, that there was any understanding by any of the four parties that an agreement was to be regarded as made or perfected until all the four defendants should have concurred in signing and delivering the agreement C. It is quite apparent that the two defendants who negotiated and assisted in formulating the agreement C were unwilling to make any agreement by themselves which the other defendants would not concur in. These two defendants were careful not only to require the other two defendants to join in the agreement, but also to have the. approval thereof of the beneficiaries under the will of their testator; and to this end application was made to the court in behalf of one of the beneficiaries, who was of unsound mind, for leave to give such approval and ratify such agreement, which the court granted. An examination of the evidence given by the several witnesses, and the correspondence relating to the matter, which appears in the record, leaves no doubt in our minds as to the correctness of the decision by the trial court that the negotiations between the two plaintiffs and the two defendants never ripened into a perfected agreement. Certainly the other two defendants never concurred in any such agreement, by parol or otherwise, and never signed the agreement 0, and this, agreement was concededly never delivered.

Upon this branch of the case we fully concur with the decision of the trial court. We cannot, however, agree with the conclusion arrived at by the trial court, that the whole complaint should be dismissed upon the merits, upon the theory that the action was one to compel specific performance of the agreement C alone, and that, failing to establish the right to that relief, the court could not consider, investigate, or pass upon the other relief asked for by the plaintiffs, the'setlement of the rights of the parties, under subdivision 15 of the original partnership agreement A, and the enforcement of the performance thereof by the defendants. This question was fairly presented on the trial, and it seems to us that the plaintiff’s position with reference to it is unanswerable. ’

At the close of the plaintiff’s evidence the defendants asked the court to compel the plaintiffs to state whether they relied upon more than one cause of action, and, if so, that they be compelled to elect upon which one they relied, and asked for judgment upon. The plaintiffs stated that they relied upon the facts alleged in the complaint, and claimed the right to either form of relief asked for in the complaint which the court should hold that the facts proved entitled them to. They claimed the right to have specific performance of the agreement 0, or, failing in that, then specific performance of subdivision 15 of the agreement A. The court, however, held that but one cause of action was stated, and that was to enforce the agreement 0, and plaintiffs duly excepted. Thereupon the evidence on the part of the defendants was given, and the decision of the court was made, which dismissed the complaint on the merits, on the grounds, solely, that the agreement 0 was never made, executed, or delivered, and, if so made, would not be enforced in equity. The decision was excepted to by the plaintiffs as a whole, and as to each part separately. The complaint, after setting forth the agreements A and B, alleged the notice by defendants, under subdivision 14 of the agreement A, to terminate the co-partnership at the end of the first five years, and notice by plaintiffs that, under subdivision 15 of the agreement A, they claimed the right to purchase the interest of the defendants’ testator in the business and assets of the firm; that thereupon an attempt was made to ascertain and agree upon the amount to be secured and paid by plaintiffs for such interest; that the plaintiffs claimed that the amount, as ascertained pursuant to subdivision 15 of the agreement-A, was $609,000; and that the plaintiffs were ready and willing to pay this amount of money and give the security therein provided for, but the defendants claimed that the amount to be so secured and paid should be much larger than $609,000. It was further alleged that the defendants expressed dissatisfaction as to the terms of payment, the rate of interest, and the security provided for by subdivision 15 of the agreement A, and desired to have such terms modified, and said that if such change could be made they would consent to a reduction of the amount of the purchase price of the interest which they (defendants) claimed it really was or should otherwise be, and that thereupon the negotiations followed which the plaintiffs claimed matured into the agreement O. The complaint also alleged the refusal by defendants to carry out the terms of either the agreement O, or of subdivision 15 of the agreement A. The relief asked for was the enforcement of the agreement 0, or of subdivision 15 of the agreement A. We are not called upon to determine whether', upon the evidence given at the trial, relief should have been afforded to the plaintiffs under subdivision 15 of the agreement A, because, while the case was being tried, and before all the evidence was taken, the court held that under the pleadings no such relief could "be had; and the only question, therefore, is whether the court was right in giving such effect to the pleach ings. If it was not, then the case should go back for a new trial, and the court should take all the evidence hearing upon thia branch of the case, and pass upon the question upon the merits. Moreover, no question was raised that the proofs were insufficient to authorize the court to afford such relief. The only question raised was whether the relief could be had under the pleadings, and the dismissal of the complaint was put solely on this ground of defective pleadings. By virtue of the defendant’s election to discontinue the co-partnership at the end of the first five years, and the plaintiff’s election to purchase the interest of defendants’ testator, the plaintiffs are entitled to a transfer of such interest upon giving the security and paying the amount of the purchase price, to be determined under the provisions of subdivision A. A controversy having arisen as to what amount of such purchase price should be computed and fixed at under the terms of such subdivision 15, it was competent for the parties to adjust and compromise their differences. And then, if they did not or could not perfect such agreement or compromise, and the defendants refused to carry out the provisions of subdivision 15 of the agreement A because they could not agree as to the purchase price, it was proper for plaintiff to appeal to the court, and ask it to settle the rights of the parties, and compel a compliance with the provisions or the agreement. Such was the position of the ease when the court found the agreement 0 had not been made, executed, or delivered, and that no agreement by parol to the like effect had been made. Certainly the plaintiffs were entitled to have the other branch of the case considered by the court, and the merits relating therto passed upon. It is hardly necessary to cite any authority for this proposition. The following oases may be referred to, however, as supporting the view taken by us: Bennet v. Vade, 2 Atk. 324; Colton v. Ross, 2 Paige, 396; Lloyd v. Brewster, 4 Paige, 537; New York Ice Co. v. North Western Ins. Co., 23 N. Y. 357; Barlow v. Scott, 24 id. 40; Sternberger v. McGovern, 56 id. 12, 21; Hall v. Hall, 38 How. Prac. 97.

Our conclusion is that the judgment should be reversed, and a new trial ordered, with costs to abide event.

All concur.


author: O’BRIEN, J.

text:
    John C. Wilson, Resp't, v. Charles W. Dickel et al., Resp'ts.
    (Supreme Court, Appellate Division, First Dept.,
    Filed June 29, 1896.)
    1. NEGLIGENCE—CONTBIBUTOBY.
    Where, in an action for personal injuries caused by the slipping oí a saddle on a horse hired from defendant, the latter is not responsible for injuries which the plaintiff suffered if they resulted from an improper adjustment of the saddle upon the horse, where it appears that the saddle was adjusted subsequently by plaintiff who continued to ride until the accident.

      3. Same.
    Where the plaintiff had notice of the fact that the saddle was not properly adjusted and undertook to remedy it, and, if, without doing- it so as to render the saddle safe, he proceeded on his fide,, he was guilty of negligence which contributed to- his injuries and would bar his recovery.
    3. Same.
    The plaintiff cannot, as matter of law, be held guilty of negligence in assuming that the saddle was equipped with all necessary and proper appliances.
    4. Same.
    In such case, an instruction, which produces confusion in the minds of the jury and prevents them from considering the single ground upon which a recovery can be upheld, but leaves them to determine such liability upon the other ground of the improper adjustment of the saddle, is error.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.
    The action is to recover damages for personal injuries suffered by plaintiff through the alleged negligence of the defendants. The defendants were copartners, conducting a riding school and letting horses for hire, and at the time the injuries were received the plaintiff was a pupil of the defendants, and had taken sufficient lessons in horseback riding so that he “felt perfectly able to-go out with a well-trained horse.” In company with a Mr. Stockholm on July 3, 1892, plaintiff went to defendants’ riding academy, and ordered horses to be saddled and equipped, which were brought, and they started on a ride through Central Park. Plaintiff’s horse was a good one, spirited, and well trained, and the plaintiff liked him. He ha'd ridden him before. While in the. park, Mr. Stockholm noticed that plaintiff’s saddle was giving way, or seemed to be moving from position, and suggested to plaintiff that they get a mounted policeman, who was in sight, to fix it. Plaintiff dismounted, and the policeman, at plaintiff’s request, tried to adjust the girths of the saddle. He testified that he found the straps in poor condition. There were two girths with three straps on the saddle. One girth had two buckles; the second, one buckle. On one strap the tongue of the buckle was short, and would not hold; another strap was split from hole tobóle; so that there was hut one buckle that held anything at all. The policeman called plaintiff’s attention to that condition, and remarked that it was an outrage to allow anything like that to go-out. He tightened the girths as'well as he could, and told the plaintiff that it was the best he could do, and that he guessed it would hold. The plaintiff and Mr. Stockholm then proceeded on their ride, going through the park, and on up to Claremont, where they stopped about half an hour, giving their horses to the attendants there, and then started -back. On remounting at Claremont, plaintiff did not examine the girths of his saddle, nor did he ascertain whether the girths had been loosened while the horses had been in the stable. While going down Riverside Drive at a gallop, the road at this point being a little down grade, the plaintiff felt the saddle suddenly slip and turn, and he went off, and struck on his head, and was painfully injured. Up to that time no inclination of the saddle to slip had been noticed since leaving Claremont. The horse was caught by a boy, and a policeman put the saddle back on the horse, and the boy rode the horse with the saddle to defendants’ stable. Mr. Stockholm testified that this policeman called his attention to the fact that the leather strap was rotten, and that he (the witness) observed that the buckle tongue had gouged the leather out, and drawn by for three or four holes, slipping from hole to hole. The man having charge of the defendants’ saddles was examined, and he produced a saddle in good condition, without any tears in any of the straps be'tween the different holes, which he testified' was the same saddle ,that was on the horse when he came into the stable after the aeci'desnt. The plaintiff paid out $375 for doctors’ bills, trained nurses, etc., and the jury brought in a verdict against the defendant in the sum of $400. A motion for a new trial was made and denied, and from the order denying the motion, and from the judgment entered upon the verdict, the defendants appeal.
    Henry B. Anderson, for app’lts; Byram L. Winters, for resp’t.
   O’BRIEN, J.

The negligence of the" defendants was predicated upon the failure—First, to furnish the plaintiff with a properly equipped saddle and horse; and, second, to place them in his hands with the saddle properly adjusted. These grounds, because not consistent, should not be confused; and unless there was evidence to sustain a recovery upon either ground, and unless the distinction between the separate grounds was clearly presented for the consideration of the jury, confusion was likely to ensue and a mistrial occur. Upon the question of whether or not the defendants failed in their duty to place the plaintiff in possession of a saddle properly adjusted upon the horse, the evidence shows that, after leaving the stable, and upon reaching the park, the attention of the plaintiff was called to his saddle, and thereupon it was adjusted by a police officer, and thereafter the plaintiff continued his ride, and, after reaching Claremont, at the upper end of Riverside Drive; the horse was placed in the shed, where he remained for half an hour. While it was suggested that it was the custom to loosen the saddle while the horse was standing, and then to adjust it again when the party was ready to remount, there is no evidence directly upon that point; but we have the fact that the plaintiff, either with or without examining whether the saddle was properly adjusted, remounted, and proceeded to ride home. In this state of the record it is clear that the defendants could net be held responsible for the injuries which the plaintiff suffered it ¡they resulted from an improper adjustment of the saddle upon the horse, because such obligation as rested in this respect upon the defendants was violated at the time the horse left the riding academy, and, it appearing that the attention of the plaintiff was called •to that fact, and that the saddle was adjusted in the park, and the .plaintiff thereafter continued to ride, we are necessarily brought |to the conclusion, either that the failure to adjust the saddle properly in the first instance had no bearing upon the accident which 'culminated in the injuries, or, if we assume that the saddle left the riding academy without being properly adjusted, the plaintiff had notice of this fact, and undertook to remedy it; and if, without doing it so as to render the saddle safe, he proceeded on his ride, he was guilty of negligence which contributed to his injuries, and which would bar his recovery. In the condition of the record, therefore, as it stood at the close of the case, it became the duty of the court to dismiss from the consideration of the jury this ground of recovery, and, if the plaintiff was entitled to damages, it could only be upon the other ground, namely, that the defendants, failed in their duty to furnish the plaintiff with a properly equipped saddle and horse. There was testimony unquestionably from which the jury could infer that the accident was due to this 'cause, the evidence pointing to the fact that the saddle was in poor condiition, the buckles and leather composing the straps permitting the 'tongue of the buckle, when a strain was placed on the horse, as in, galloping down hill, to draw through the leather, and thus, by( increasing the size and" length of the saddle girths, to permit the saddle itself to slip. The plaintiff could not, ás matter of law, be held guilty of negligence in assuming that the saddle was equipped with all necessary and proper appliances; and, as the question whether the officer in the park called attention to the fact that these defects rendered the saddle unsafe was placed in dispute by the testimony of the officer and that the plaintiff, the latter stating that upon adjusting the saddle he was told by the officer that it would hold, the question of plaintiff’s contributory negligence, therefore, was one of fact to be disposed of by the jury. In his charge, however, the judge neglected to present clearly the two distinct theories upon which a recovery was sought, or, as stated, to eliminate from the consideration of the jury the question of the adjustment of the saddle. The man in charge of .the defendants’ saddle room was called, and brought with him a saddle and girths complete, which were in a perfectly proper condition, and which were put in evidence and exhibited to the jury, and he testified that they were the saddle and girths used on the occasion of the accident. The defendants’ counsel asked the court to charge that: “If the jury believe that the saddle used was the one shown in court, and that the trappings were unchanged, since the accident, they must find for the defendants.” The Court: “If they find that that is the saddle, and that that saddle was all right, and was properly fastened, properly adjusted and girded, then you will find for the defendants. But it might, have been that saddle, and not properly girded.” It will thus be seen that a proposition which the defendants were entitled to have charged was not charged as requested, but was involved with the other ground upon which the defendants’ liability was sought to be placed, namely, the proper fastening and adjustment of the saddle. This could not but have produced confusion in the minds of the jury, and it not only prevented them from considering the single ground upon which a recovery upon this testimony could he upheld, but left them to determine such liability upon the other ground of the improper adjustment of the saddle.

For the reasons stated, therefore, we think that the errors committed upon the trial requise that the judgment should be reversed, and a new trial ordered, with costs to appellants to abide event.

All concur.


text:
    Melville M. Merrill, Resp't, v. George R. Blanchard, App'lt.
    (Supreme Court, Appellate Division, First Dept.,
    Filed June 29, 1896.)
    1. Appeal—First instance.
    Where the personal representatives of the deceased partners are proper or necessary parties either before or at the opening of the trial, a motion should have been made to bring them in, and it is too late to raise such an objection at the close of the ease.
    3. Parties—Necessary.
    The rule that, when one of two or more joint debtors dies, his .personal representatives should not be joined in an action with the survivors, except upon the allegation of the insolvency of the survivors, applies to the case of a death of a,joint debtor pending the action.
    3. Partnership—Retired partner.
    Services rendered after, on a contract made before, dissolution of a firm are not affected by such dissolution, though rendered with knowledge thereof.
    4. Damages—Master and servant.
    In an action by a servant for a breach of contract on the ground of wrongful discharge from employment, he is not required to allege affirmatively that he endeavored to make the damages as light as possible.
    Appeal from a judgment entered on a verdict in favor of plaintiff.
    The action was brought against George R. Blanchard, Rush W. Bissell, and Eaton N. Frisbie, as co-partners composing the firm of Frisbie, Bissell & Co., for a co-partnership liability; and, the two latter having died by the time the cause was reached for trial, the action was continued and tried as against this defendant. Recovery was sought upon thrée causes of action: (1) For breach of contract, in failing to pay a certain promisory note for $5,000 and interest, executed by said firm, dated March 23,
      1885, payable one year from date; save that the complaint alleged payment of $1,211 on account. (2) For work, labor, and services rendered to the defendants, at their request, between June 1, 1886, and April 1, 1887, at an agreed compensation of $150 a month. ’ (3) For breach of a written contract of employment of the plaintiff for five years from March 23, 1885, the date of the contract, at a stipulated sum of $150 per month.
    Wm. M. Safford, for app’lt; E. W. Tyler, for resp’t.
   O’BRIEN, J.

The first position of the appellant is that his motion at the end of the case to dismiss the complaint should have been granted, upon the ground that although Eaton N. Frisbie, one of the partners, was made a party, he was never served with a summons, and upon his death the action was not continued against his personal representatives. It is the rule that, in an action against partners, all should be made defendants; and if the case had been reached for trial, and it appeared that necessary parties had not been sued and served, an the objection had then been made that the action was not at issue as to all the parties, it would undoubtedly have been held until the proper parties were served, and issue as to them joined,'so .that there could be a complete disposition of the rights of the parties had in that action. Here, however, it appeared af the close of the case, when the objection was made, that, although joined, Frisbie was never served, and died before the trial was had. The cause of action survived against the sole surviving partner. Code Civ. Proc. § 756. And unless the court directs otherwise the suit may proceed against the defendant served. Id. § 1932. If the personal representatives of "the deceased partners were proper or necessary parties either before or at the opening of the trial, a motion should have been made to bring them in, and it was too late to raise such an objection at the close of the case.

Apart from this, there is the underlying question as to whether, had such a motion been properly made, the personal representatives were proper or necessary parties. In Bank v. Lenk, 10 N. Y. Supp. 261, it was said:

“The rule is well established that, where one of two or more joint debtors dies,his personal representatives should not be joined in an action with the survivors, except upon the allegation of the insolvency of the survivors. I see no reason why this rale does not apply to the case of a death of a joint debtor pending the action.”

See, also, Hauck v. Craighead, 67 N. Y. 436; Richter v. Poppenhausen, 42 N. Y. 376; Barnes v. Brown, 130 N. Y. 386; 42 St. Rep. 536; Voorhees v. Child’s Ex’r, 17 N. Y. 357.

These cases, we think, dispose of appellant’s contention as to the necessity for bringing in the representatives of deceased partners, because there was neither allegation nor proof that the defendant, who was the sole surviving partner, was insolvent.

If the testimony would justify the inference that, at the time the contract was made which is the basis of the second and third causes of action, the plaintiff knew that Blanchard was not a member of the firm, Blanchard would not be liable, even though the contract was made by the partnership. The plaintiff testifies that he never received any notification from Mr. Blanchard that he had retired from the firm, and never received any notice from Frisbie, Bissell & Co.’s office of the dissolution of the firm, but that he inquired of Mr. Frisbie, and he told him some time in the fall of 1885 that Mr. Blanchard had retired. Mr. Blanchard testified that he became a member of the firm, he thought, before March 23d, and retired some time in the fall of the same year. iWhat year, he does not say, but the inference would be that it :was 1885. But the contract which is the basis of the second and third causes of action was made in March, 1885, when, con¡cededly, defendant was a member of the firm. Under it he performed services until April, 1887, for which he was paid in part, and sues here for the balance. Having been prevented 'from rendering, or not being required to render, further services, he demands damages for breach of the contract, for the remainder of the term of the contract. It will 'thus been seen that the second and third causes of action are based on the same written contract under which services were rendered for part of the term, and for the balance of the term no services were rendered.

It is insisted, however, that as plaintiff knew after the contract was made that the defendant retired from the firm of Frisbie, Bissell & Co., he-is not liable for services rendered or damages accruing subsequent thereto. If we assume that it was established that defendant so' relied, and plaintiff knew it, this in no ¡way would alter his obligations to plaintiff under the contract. This precise question was recently discussed and disposed of in Bank v. Underwood, 2 App. Div. 345, wherein it was said:

“The mere fact of dissolution has no effect upon the right of third parties. It is said in T. Parsons on Partnership that no dissolution of any kind affects the rights of third parties who have had dealings with the partnership, witout their consent. This is the universal rule, without any exception whatever. As the fact of dissolution has no effect upon the rights of third parties, of course the knowledge that there has been dissolution is equally unimportant.”

With respect to the amount of damages the plaintiff, on cross-examination, testified as follows:

“I did not earn any money at all by any labor from April 1, 1887, until 1890. Q. Did you try to do anything? A. Nothing, except to put myself in the way of the firm of Frisbie, Bissell & Co., to collect what they ought to pay me, and do whatever they put me to do. I was kept there, and I was held subject to their dictation.” ' j

The appellant invokes the well-established law that a servant •who sues for a breach of contract, in order to recover the full amount, must use reasonable diligence to obtain other employment, and thus reduce the damages. This rule, he insists, supports his exception to the court’s denial of Ms motion to exclude all evidence upon the third cause of action, because plaintiff did not allege that 'he used reasonable diligence to obtain other employment. We do not think this contention can be supported. The motion was directed to excluding all testimony bearing on the cause of action. Even though plaintiff might not be entitled to. recover all be claimed, this should not preclude Mm from proving any damages. Nor do we understand the rule of pleading to require that plaintiff must allege affirmatively that he endeavored to make the damages as light as possible. Costigan v. Railroad Co., 2 Denio, 616. And in Howard v. Daly, 61 N. Y. 362, it is-said:

“Prima facie, the plaintiff is damaged to the extent of the amount stipulated to be paid. The burden of proof is on the defendánt to show either that thé plaintiff has found employment elsewhere, or that other similar employment has been offered and declined, or at least that such employment might have been found. I do not think that the plaintiff is bound to show affirmatively, as a part of her case, that such employment was sought, for and could not be found.” 2 Greenl. Ev. §§ 261, 262; Costigan v. Railroad Co., 2 Denio, 609.

The case of Fuchs v. Koerner, 107 N. Y. 529; 12 St. Rep. 318, relied on by aupellant, in no way militates against, but rather-enforces, the views-herein expressed.

We think the judgment should be affirmed, with costa.

AH concur.