text:
    Moses Israel, Pl’ff, v. Henry A. Voight et al., Deft’s.

      (New York Superior Court, Special Term,

      Filed April, 1895.)

    Tbial — Dismissal op complaint.
    Whenever, in the New York superior court, an issue of fact triable by a jury has been joined, and the plaintiff therein shall fail to bring the same to trial according to the course and practice of the court, the defendant, at any time after younger issues shall have been tried in their regular order, may move at special term for a dismissal of the complaint, with costs, and he does not waive his right to do so by the service of a notice of trial, where the cause has never been put on the calendar.
    Motion to dismiss the complaint for failure to prosecute.

      Reginald H. Arnold, for the motion; Lyman Rindskopf, opposed.
   Gildersleeve, J.

This is a motion to dismiss the complaint, with costs, for failure to prosecute. Issue was joined on the 14th day of June, 1893. No note of issue has been filed. The action is one triable by jury. On September 12, 1894, defendants served notice of trial, and on the 11th of March, 1895, defendants served notice of motion to dismiss the complaint, for plaintiff’s unreasonable neglect to prosecute the action. Thereafter, and on the 18th of March, 1895, plaintiff served notice of trial. Since issue was joined herein, younger issues have been reached, in their regular order on the calendar, and been disposed of. It is the well-established practice in the first judicial district of the supreme court, and in this court, that whenever an issue of fact triable by a jury has been joined, and the plaintiff therein shall fail to bring the same to trial according to the course and practice of the court, the defendant, at any time after younger issues shall have been tried in their regular order, may move at special term for the dismissal of the complaint, with costs. But, if it be made to ■appear to the court that the neglect of the plaintiff to bring the action to trial has not been unreasonable, the court may permit the plaintiff, on such terms as may be just, to bring the said, action to trial at a future term or circuit. Rule 36, Gen. Rules Prac. (Code, § 822). The defendants have not waived their rights herein by the service of their notice of trial, for the cause has never been put on the calendar. Chilcott v. Waddingham, 1 Law Bull. 50. Nor were they required to put the cause on the calendar before making this motion. James v. Shea, 2 Civ. Proc. Rep. 358. The facts presented on this motion meet the requirements of rule 36, and plaintiff has not shown any excuse for his neglect to prosecute, such as would justify the court in exercising its discretionary powers to permit plaintiff to proceed with the action. The case of Thompson v. Krider, 8 How. Prac. 248,. provided that, where both parties notice the cause, neither can charge delay or default upon the other for not bringing it to a hearing, does not apply to this motion, since the plaintiff did not notice the cause for trial until after the. motion papers herein had been served on him by defendants, and also for the reason that it was not a case in the first judicial district. Rule 36 of the general rules of practice applies only to courts in the first judicial district, so that the cases cited by plaintiff’s counsel do not govern this motion.

The motion to dismiss the complaint, with costs, must be granted.

Motion granted, with costs.


source: Caselaw Access Project

author: Gildersleeve, J.

license: Public Domain

text:
    Henry M. Taber et al., Pl’ffs v. New York Elevated Railroad Company et al., Def’ts.

      (New York Superior Court, Special Term,

      Filed May, 1895.)

    1. Jurisdiction — Co-ordinate.
    The court first to take jurisdiction of a matter shall proceed to judgment and enforce the same, to the exclusion of all other courts, provided only that all the relief which the case requires can he secured in the court in question.
    3. Same — Stay.
    ■ A justice of the supreme court has not jurisdiction to modify or stay the operation of a judgment of the superior court, regularly procured and duly entered, in the absence of any charge of fraud or irregularity in the means employed in obtaining the judgment.
    Motion to punish defendants .for contempt.

      John E. Parsons, for pl’ff; E. C. James, for def’ts.
   Gildersleeve, J.

Plaintiffs are the owners of property in Pearl street, in front of which the defendants, in about the year 1878, constructed an elevated railway. In doing so, the defend-: ants appropriated certain portions of the plaintiffs’ property, and thereby became trespassers. This suit was commenced in 1889, and is the usual action in equity by the owners of property-abutting upon a street occupied by said railroad to restrain the defendants from operating their railroad, 'and, incidentally, to-recover past damages. The trial was had in May, 1893, and resulted in a judgment for plaintiffs, which was duly entered on August 29th of that year. The court found that the consequential damages to the fee value were $45,000, and the defendants were allowed the option to avoid the injunction by purchasing the plaintiffs’ easements at that price, and taking a conveyance thereof. The judgment awarded certain past damages, and “adjudged that defendants, after the expiration of sixty days from the entry of this judgment, and the service of a copy thereof, with notice of entry, upon their attorneys, be, and they are hereby, severally enjoined and restrained from maintaining and using the elevated railroad structure now existing in front of the premises of the-plaintiffs * * * for any purpose other than that of removing it.” It was provided that the judgment, injunction, and restraint should not in any way be operative, provided the defendants tendered the usual conveyance twenty days before the expiration of the said sixty days, and paid to - the plaintiffs the said sum of $45,000.' With these conditions the defendants did not choose to comply. They preferred to await the determination of another tribunal, where they had reluctantly instituted proceedings to legally acquire the rights of plaintiffs, which they had for many years wrongfullj’' enjoyed, and thereby put themselves in a position where they could choose between the two judgments, and elect to obey the one for which they had a preference. This course involved the danger of placing the defendants in contempt of the injunction contained in the judgment of August 29th. They nevertheless took the risk. This motion is by plaintiffs to punish the defendants for disobedience to said injunction.

The history of the strife, briefly stated, is as follows: About fifteen years after the original seizure of the plaintiffs’ property in question, and on the eve of the trial of this action, the defendants herein first instituted proceedings in the supreme court for the acquisition of the plaintiffs’ easements. By the terms of the judgment herein the injunction became operative on October 30, 1893. Certain stays were obtained upon the applications of the defendants for orders to show cause, which covered the period between the 30th of October and 8th of November, 1893, but the sixty days time given the defendants in which to a-vail themselves of the alternative provided was never enlarged. The orders to show cause, above referred to, were judge’s orders, and the stays they contained did not operate to modify the judgment of the court On November 6, 1893, the defendants obtained an order in-the condemnation proceedings from a justice of the supreme court holding the special term at chambers in said court, requiring the plaintiffs to show cause on November 8,1893, why an order should not be made in that proceeding, under section -3379 of the Code, authorizing the railroad company to continue in possession of the property sought to be condemned, and staying all actions and proceedings against defendants on account thereof, upon their giving security for the payment of the compensation awarded in the condemnation proceedings, with costs. The order contained a temporary stay of all actions and proceedings tending to interfere-with the possession _y defendants of the property in question, until the decision of the motion. ' On November 8, 1893, the motion to confirm the report and award of the commissioners in the condemnation proceedings, and the said order to show cause, granted November 6, 1893, were heard at special term, at chambers, all parties being represented, and the decision was reserved. The order of the supreme court confirming the report and award of the commissioners in the condemnation proceedings was made on November 27, 1893. The $30,250 awarded by the commissioners was on that day tendered to the plaintiffs, and, being refused by them, was then deposited with the trust company, according to the provisions of the order. The last named order, entered on November 27th, bore date of November 24, 1893. On November 28, 1893, another order, dated' November 24, 1893, was entered in the supreme court, granting authority to the defendants, on payment of the award of $30,250, to remain in possession of said property, and enjoining the Messrs.. Taber, who are the plaintiffs in this action, from interfering with the possession of said property by the railroad companies, and enjoining their actions and proceedings against said companies on account of their possession of said property, and enjoining the Messrs. Taber “from taking any steps in any action or proceedings which shall interfere or tend to interfere with the plaintiffs’ (defendants in this action) possession of the property aforesaid, or which shall' hinder, delay, or check the regular transaction of their business on account of such possession.” On December 6, 1893, the Messrs. Taber appealed to the general term of the supreme court from said last mentioned •order, entered November 28, 1893, except so much thereof as authorized the railroad companies to continue in possession of the property in question after the payment of said award. No appeal was taken from the final order confirming the said report and award, except on the question of costs. On February 27, 1894, on.motion of the railroad companies, showing compliance with said final order in the condemnation proceedings, this court, at special term, ordered as follows: “That the injunction contained in the judgment herein be, and it hereby is, perpetually dissolved.” On application of the Messrs Taber, it was further ordered “ that the plaintiffs herein may take proceedings to obtain from the said New York Life Insurance and Trust Company the money heretofore deposited by defendants herein to the credit of said condemnation proceedings, with interest thereon, and that the plaintiffs may receive the said moneys ; all without prejudice to any rights other than the right after the entry of this order which they may have in this action, or to any further proceedings herein in said proceeding.” Thereafter the Messrs. Taber .obtained the said money from the trust company. On April 9, 1894, the judgment in this action was affirmed by the general term of this court. On May 18,1894, the injunction order, dated November 28, 1893, granted by a justice of the supreme court in the condemnation proceedings, was reversed by the general term of the supreme court, on the ground that the confirmation of the report and the payment of the award on November 27, 1893, entitled the railroad companies to the possession of the property condemned; that the power given by section 3379 of the Code was intended to protect the railroad companies while the proceeding was pending, and should not be exercised after the proceeding was perfected.

It must be conceded that the railroad companies acquired title to the property in question by the payment of $30,250 on November 27, 1893. Had this been accomplished prior to October 30, 1893, at which time, as it is claimed by plaintiffs, the injunction contained in the final judgment of this court became operative, there would be no grounds for this motion. This motion under consideration is, as we have said, to punish the defendants for a contempt of this court for disobedience to the injunction above mentioned, contained in the final judgment in this action, and the plaintiffs ask that a fine be imposed upon the defendants sufficient to indemnify the plaintiffs against the loss and injury which may have been produced to the plaintiffs by reason of such misconduct of the defendants. The plaintiffs, having received from the trust company the sum of $30,250, awarded by the commissioners in the condemnation proceedings, now claim as an indemnity the difference between that sum and the sum of $45,000, fixed by this court in its final judgment as the value of the plaintiffs’ easement. The motion is vigorously contested, and a careful discussion of the various positions taken by the respective counsel would cover much space, and, in view of the conclusion reached, would be of little benefit to either side. We think the motion should be granted for the following reasons: If the stay contained in the order of November 6, 1893, made by a justice of the supreme ■court in the condemnation proceedings, is given the power claimed for it by defendants, it operated to undo the final judgment of another court of competent jurisdiction, — a judgment regularly procured and duly entered. There is no charge of any fraud or irregularity in the means employed in obtaining the judgment, which the order in question, as is now asserted, suspended, and in effect set aside. Such procedure the law does not tolerate. The rule is well established that the court first to take jurisdiction of the matter in issue shall proceed to judgment, and enforce the same, to the exclusion of all other courts, provided only that all the relief which the Case requires can be obtained in the court in question. That the power of this court in this case was and is ample and complete will not be denied. Even if it can be said that the orders granted by judges of this court between October 30th and November 8th operated to enlarge the sixty days — an effect which we think, as already stated, cannot be claimed — from November 8, 1893, to November 27, 1893, the defendants were in deliberate contempt of the injunction, unless they are purged by the alleged stay contained in the order of November 6,1893, made by a justice of the supreme court in the condemnation proceedings. This order does not purport to enlarge the sixty days ; it simply stays proceedings by the plaintiffs. We hold that a justice of the supreme court has no jurisdiction to modify or stay the operation of a judgment of this court obtained and outstanding under the circumstances herein disclosed. Mayor, etc., v. Brady, 115 N. Y. 599 ; 26 St. Rep. 340; Conover v. Mayor, etc., 25 Barb. 513 Stuart v. Palmer, 74 N. Y. 183. For a period of more than three: weeks, therefore, the defendants disregarded the injunction, and in so doing were guilty of a deliberate violation of the decree of this court. The fine imposed should be sufficient to indemnify the plaintiffs. It clearly appears that plaintiffs are aggrieved in difference between $45,000 and $30,250, which equals the sum of $14.750. It therefore follows that the fine imposed should be the sum of $14,750, together with $10 costs of this motion.


author: McAdam, J.

text:
    Stephen B. Fisk, Pl'ff, v. Mary Frances Fisk, Def't.

      (New York Superior Court, Equity Term,

      Filed May, 1895.)

    Mabbiage — Fb aud — Annulment.
    If a female represents herself as a maiden, and it turns out that she is a widow or a divorced woman having the legal capacity to remarry, it is not such a misrepresentation as will authorize an annulment of the marriage.
    Appeal to annul a marriage.

      A. Oakley Hall and J. P. Niemann, for pl’ff; J. C. Coleman, for def’t.
   McAdam, J.

The plaintiff grounds his action upon the charge that the defendant falsely represented to. him that she had never been previously married, when in fact she had been married to one Benjamin F. White, who was living at the time; the plaintiff being by such misrepresentation induced to marry the defendant. While it is true that the defendant had been previously married to White, and that he was living at the time, it appears by an'exemplified copy of the record of the court of common pleas for the county of Philadelphia that the defendant had obtained • an absolute divorce from White in that court at the September term, 1858, and that she was competent, when the representations were made, to contract marriage, particularly in the state of Pennsylvania, where such divorce was procured." The marriage with the plaintiff was contracted June 3, 1862, and was solemnized in Pennsylvania. So that the contract, apart from the question of fraud, was valid everywhere. Assuming that the alleged representations were made, that they were untrue, that the plaintiff was deceived by them, and induced to enter into a contract which he would not have made if-he had known the facts, the question to be determined is whether the deceit was of that serious character which authorizes an annulment of the marriage. Marriage is the cornerstone of the social fabric, and, unlike other contracts, that of marriage cannot be rescinded by the voluntary act of the parties. Indeed, the statute does not provide that fraud shall vitiate a contract of marriage, but only confers an authority on the court to-decree an annulment for such cause, if the nature of the fraud or the decree or amount of deception practiced be deemed sufficient to warrant the court in declaring the contract void. Code, section 1743. This is left to be determined on general principles applicable to all contracts, subject only to such restrictions and modifications as necessarily arise and grow out of the peculiar nature of the contract of marriage. Reynolds v. Reynolds, 3 Allen, at page 606. The law, in the exercise of a wise and sound policy, seeks to render the contract of marriage, when once executed, so far as possible, indissoluble. The-great object of marriage in a civilized and Christian community is to secure the existence and permanence of the family relation, and to insure the legitimacy of offspring. In Long v. Long, 77 N. C., at page 808, the court said:

“ There is, in general, no safe rule but this: The persons who marry agree to take each other as they are, and we cannot but say that nothing could be more dangerous tihan to allow those who have agreed to take each other in terms for better, for worse, to be permitted to say that one of the parties is worse than expected.”

Similar expressions will be found in Farr v. Farr, 2 Mac Arthur, at page 36 ; Carris v. Carris, 24 N. J. Eq., at page 552 ; and in 2 Bish. Mar. & Div. (ed. 1891) sections 459, 460. In short, the one takes the other for better or worse, with all his or her past or present imperfections, and there is no going behind the ceremony. It may therefore be laid down as settled law that if a female represents herself as a maiden, and it turns out she is a widow, or a divorced woman having the legal capacity to remarry ; or a man represents himself as a bachelor, when he is a widower, or a divorced man having the legal capacity to remarry, — the misrepresentation would not go to the foundation of the marriage contract; it would be one of those frauds for which the law affords no relief. Clarke v. Clarke, 11 Abb. Pr. 228. And this upon the ground that the most serious considerations of public policy and good morals affect the relation, and demand that it should be indissoluble except for the gravest causes. The law wisely requires that persons who act on representations or belief in regard to such matters should bear the consequences which flow, from contracts into which they have voluntarily entered, after they have been executed, and affords no relief for the results of “ a blind credulity, however it may have been produced.” Reynolds v. Reynolds, 3 Allen, 607, 608 ; 2 Kent, Comm. 77. It follows that the complaint must be dismissed.


text:
    Ellen M. Gannon, Pl’ff, v. John S. Fergotston, Def’t.

      (New York Superior Court, Special Term,

      Filed May 8, 1895.)

    Usury — What is not.
    A charge for indorsing a note for discount is not usury.
    Demurrer to the complaint.

      J. Cochrane, for pl’ff ; J. C. Delamare, for def’t.
   McAdam, J.

The bill is in equity to enjoin the defendant from foreclosing a chattel mortgage, upon the ground of usury; and (2) that the mortgage be reformed so as to include only property belonging to the plaintiff. The defendant demurs upon the ground that the complaint does not state 'facts sufficient to state a cause of action.

1. As to the usury: The plaintiff alleges that she applied for a loan of $500; that the defendant presented her a promissory note for $500, payable four months after date, and directed plaintiff to present the same at the Mt. Morris Bank for discount ; that plaintiff presented the note at the bank, where it was discounted, receiving thereon $490; and that the note was not discounted upon the responsibility of the plaintiff. The mere fact that the mortgage was for $175 more than the advance does not, under these circumstances, prove usury. White v. Benjamin, 138 N. Y. 623; 52 St. Rep. 151. In the seventh paragraph of the complaint the plaintiff charges “ that said mortgage provided for the payment of $175 to defendant as for fees and charges for indorsement and guaranty on said note, and services in the premises.” This means, in effect, that" the defendant indorsed and guaranteed the note of the plaintiff, which she procured to be discounted, and that he charged the $175 for his indorsement, guaranty and services. Such a transaction is not usurious. See Moore v. Howland, 4 Denio, 264, 265; Ketchum v. Barber, 4 Hill, 224; 7 id. 444; Kitchel v. Schenck, 25 N. Y. 515; Elwell v. Chamberlin, 31 id. 611; Tyler, Usury, 95, 103, 107, 114 et seq. The plea should set forth the usurious agreement, if one be relied upon, the names of the parties between whom it was made, the amount loaned, the amount of usury agreed to be paid, the length of time for which the loan was to run, and that the agreement was corrupt. Manning v. Tyler, 21 N. Y. 567; Griggs v. Howe, 31 Barb. 100; Banks v. Antwerp, 5 Abb. Prac. 411; Maule v. Crawford, 14 Hun, 195; Gould v. Horner, 12 Barb, 601. The demurrer admits the facts alleged, but not the pleader’s conclusions. See Knapp v. City of Brooklyn, 97 N. Y. 520; Bogardus v. Insurance Co., 101 id. 328; Moak, Van Santv. Pl. (3d ed.) 783 ; Hall v. Bartlett, 9 Barb. 301; Story Eq. Pl. § 454.

2. As to reformation : There is no allegation of mutual mistake, nor of fraud on the part of the defendant, sufficient to justify the relief sought; and including property not belonging to the plaintiff would not seem to operate to her prejudice. There must be interlocutory jungment for the defendant, with leave to the plaintiff to amend on payment, within twenty days, of $20 costs, — the trial fee of an issue of law.


author: Hatch, J.

text:
    Jacob Haas, Pl’ff, v. Albert J. Colton, Def’t.

      (Buffalo Superior Court, Special Term,

      Filed April, 1895.)

    Pleading — Supplemental answeb.
    The right to serve a supplemental answer is not a legal right, hut rests in the sound discretion of the court, and, though courts ordinarily allow supplemental pleadings where a judgment, which determines the merits of the controversy, is sought to he pleaded, they will refuse where such defense is of a purely technical nature.
    Motion for leave to file a supplemental answer.

      William H. Love, for def’t; James C. Fullerton, for pl’ff.
   Hatch, J.

This action is brought against a physician, to recover damages for alleged malpractice, and was commenced by the service of a summons on September 6,1894. Issue was joined therein, by the service of an answer, December 10, 1894. The cause is-now on the calendar of the present court for trial. On January 14, 1895, defendant brought an action in the municipal court of Buffalo to recover of plaintiff a balance claimed to be due for services rendered, out of which the alleged malpractice grew, and also for services rendered the family of plaintiff. Thereafter, and on the 30th day of January, 1895, judgment was rendered therein in favor of plaintiff against defendant, for the sum of $43.25, damages and costs, of which sum $19.25 was allowed plaintiff for the services out of which the action arose. The plaintiff appeared in the last actiotl, but offered no defense. Immediately upon the expiration of the time in which an appeal might be taken'from this judgment, defendant served the motion papers in this proceeding. The right to serve a supplemental answer is not a legal right, but rests.in the sound discretion of the court. Fleischmann v. Bennett, 87 N. Y. 231. The application has been and may be denied where there is reasonable ground to believe that injustice will be done, or fraud triumph, or where loches has intervened. Holyoke v. Adams, 59 N. Y. 233 ; Campbell v. Campbell, 7 St. Rep. 443; Hasbrouck v. Disbrow, 24 id. 428. Ordinarily, courts allow amendments and supplemental pleadings where the matter sought to be set up presents a determination of the question involved; and, where a judgment is sought to be pleaded which determines the merits of the controversy, it should be allowed without hesitancy, as it is idle to retry issues which have once been fairly determined. This rule, however, is not inexorable, and- pleads with less favor where the defense sought to be interposed is of a purely technical character. It appears, with reasonable clearness, that the suit in the municipal court was instituted for the purpose of creating a bar. It does not appear that any attempt was made to enforce the judgment obtained, and as soon as the time expired in which an appeal could be taken, and the judgment had become absolute, this motion was made. The cause has been noticed for trial by both parties, and both have filed notes of issue. The merits of the issue have never been tried, and never will be, if the supplemental pleading be allowed. Injustice may be accomplished thereby, and as plaintiff proceeded in the cause after he had recovered his judgment, and-has taken the necessary step to bring the issue to a trial, it is no injustice to him to hold that he has elected to stand upon the merits, as a defense, and should not now be permitted to change his position by the technical plea. What the effect of the judgment is as evidence, or .in what respect plaintiff can avail himself of it, is not now before us, and no opinion is expressed thereon. This motion is determined upon the particular facts now present, as must be every motion of a like character.

Motion denied.


text:
    Charles M. Bagg et al., Pl’ffs, v. Marvin S. Robinson et al., Def’ts.

      (Buffalo Superior Court, Special Term,

      Filed April, 1895.)

    1. Injunction — Affidavit.
    An injunction, based upon the complaint, must be supported by the allegations therein, and cannot be helped out by allegations in the affidavit, but the plaintiff is not precluded from furnishing by affidavit evidence to support the allegations of his complaint.

      2. Same — Basement.
    Where there is an express agreement or conduct, either actively or by acquiescence, which has led a party to make valuable improvements or erect permanent structures, or do other things which would make the assertion of the legal title operate as a fraud upon the equitable right, an easement will be inferred, even though the original right was revocable as a license, and a preliminary injunction will be granted to restrain any interference with its enjoyment.
    Motion to continue a preliminary injunction.

      Tracy C. Becker and Eugene L. Falk, for pl’ffs; William L. Marcy, for def’ts.
   Hatch, J.

The preliminary injunction obtained herein was based upon the complaint and accompanying affidavits, and have been supplemented by other affidavits read in opposition to the moving papers. The complaint, in substance, alleges : ■ That plaintiffs are copartners doing business under the firm name of Bagg & Wegefarth. That the defendant Robinson, about the 12th day of March, 1894, leased the building known as the “Court Street Theater,” and entered into possession thereof. That the defendant the Court Street Theater Company is a domestic corporation doing business at the city of Buffalo. That said Robinson duly assigned said lease to said corporation, subject to plaintiffs’ rights. That on March 12, 1894, Robinson entered into a written lease with the plaintiffs, whereby he leased to plaintiffs the basement and space under the sidewalk of said Court Street Theater building for the purpose of selling wines, beer, liquors, and cigars for the term of five years, beginning on the 1st day of May, 1894, and to end on the 1st day of May, 1899. That among other things, said lease provided:

“It is hereby expressly understood and agreed that the said parties of the second part (plaintiffs) are to have the exclusive privilege for the sale of beer, wine, liquors, and cigars in the Court Street Theater building, in whatever portion of the premises that said party of the first part may permit the sale thereof, being responsible for the payment of all excise duties and license therefor.”

At the time of the execution of said lease said theater was in process of reconstruction, and the portions, spaces, and- places where wines, beer, liquors, and cigars should be sold in the building were not determined upon, and could not be until the same was completed. Upon the completion of the improvements, Robinson stated to plaintiffs that they were to have the privilege, under the lease, or selling liquors in every portion of said building. That plaintiffs thereupon entered into possession of said premises, rights, and privileges, and sold wines, beer, liquors, and cigars in every part of the house. That said Robinson was interested in the gross receipts from the sale of such liquors, and has at ail times received his share of the same, and continues to claim and receive them. That plaintiffs obtained the license for the sale of liquors and cigars upon such premises, together with a concert hall license required by the ordinances of the city of Buffalo, which authorized their sale in all parts of the house. That during all the time said Robinson has been, and now is, the manager of the said defendant company. That since on or about November 1, 1894, defendants have wrongfully and unlawfully interfered with plaintiffs’ rights under their lease, and since February 4, 1895, they have unlawfully and wrongfully barred the entrance from the premises demised and leased into the first floor of said theater, and have refused to allow the plaintiffs free access to and egress from said theater, and portions thereof, for the purpose of selling wines, beer, liquors, and cigars, and offering the same for sale. That said Robinson refuses to open the said entrance, and refuses plaintiffs, their agents and servants, the privilege and rights of possession in the said lease, and free access to and egress from the main floor of the theater, notwithstanding repeated requests and demands therefor, and has and still declares that defendants will continue to refuse to allow the entrance to be opened and unobstructed ; and that by reason of said unlawful and wrongful acts plaintiffs’ traffic has been entirely cut off through the said entrance upon the main floor and other portions of said theater. That, if defendants are not restrained, plaintiffs will suffer irreparable injury, for which they have no adequate remedy at law. Demands judgment for damages, and for a perpetual injunction restraining defendants from interference with plaintiffs’ rights in the premises. The lease is attached to the complaint, and is made a part thereof. By it the rent reserved is fifteen per cent, of the gross receipts of áhe business done.

There is much conflict respecting many matters contained in the affidavits submitted, and upon much there is no dispute whatever, and the motion may be disposed of, for the most part, on undisputed facts. It is conceded that when plaintiffs obtained the lease the theater building was in process of reconstruction, and both from the plans of the architect and the alterations made it was ■evidently intended that said theater should be run as a vaudeville theater, and that liquors and cigars should be sold during each entertainment, which should be procured from the bar in the basement. To this end stairways were constructed leading from the basement to the principal floor of the house, and what was called a “ rush bar ” placed for the speedy accommodation of many patrons at a time, and the chairs and seats were so arranged that waiters could have access between them, to supply the wants of patrons during the entertainments, and tables and chairs were placed in the boxes and passages of the building to accommodate ■those who occupied the same or might wish to sit thereat. An electric enunciator was in the bar, and wires ran from the same to all parts of the house, by which waiters could be called at the desire and convenience of the patrons. In addition to this, plaintiffs, after some dispute with defendants as to who should pay therefor, procured and paid $250 for a concert hall license, the same having been rendered necessary by the sale of liquors at the entertainments given, as required by the ordinances of the city ; and subsequently there was constructed a roof garden upon the portico, extending from the front of the building to the curb line over the sidewalk, for the use of patrons, with a stairway running direct therefrom to the basement for the convenient service of liquors and cigars as required. Plaintiffs’ part of this expense was $350, which they paid. The lateness of the season when it was finished prevented use. When the theater opened for business, plaintiffs were permitted to sell liquors and cigars in all parts of the house, except the gallery, and in the latter were later permitted to sell cigars. Defendants, in a letter under date of October 24, 1894, stated that plaintiffs had a contract for the sale of wines, beer, liquors, and cigars on the company’s premises, and proposed, as a temporary expedient, to raisé the consideration therefor from fifteen to twenty per cent. It does not appear that this was acted upon. Some modification of the original permit to sell appears to-have been made, and prices for admission to different parts of the house were changed in consequence. This was evidently an experiment, and it occasioned differences. Difficulties rapidly sprang up, leading to the assertion of claimed legal rights, and the exclusion of plaintiffs from the theater building, substantially as alleged in the complaint. Plaintiffs have expended in fitting up the basement, in addition to the expense before noted, about the sum of $5,000. Before stating the respective positions of the parties, it is proper to settle a preliminary question. Claim is made that, as the injunction is based upon the complaint, it must be supported by the allegations therein, and cannot be helped out by allegations in the affidavits. This undoubtedly is the rule (Stull v. Westfall,. 25 Hun, 1), and the plaintiff must show by his complaint that he is entitled to final relief for which the action is brought. McHenry v. Jewett, 90 N. Y. 58. But plaintiff is not precluded from furnishing by affidavit evidence to support the allegations of his complaint. The complaint alleges that the plaintiffs were to have the.exclusive right to sell liquors and cigars in the theater building ;- that they were granted such right by defendants, and did business thereunder. How they exercised this right, and what was done by defendants to facilitate its exercise, becomes evidence in order to establish it, and- also that the parties understood that such rights existed, and intended they should be exercised. Consequently, statements showing the construction of the “ rush bar and stairway leading therefrom, and of the summer garden and its appurtenances, are properly set forth in the affidavits, and tend to support the allegations of the complaint. The main question, however, turns upon the construction to be placed upon the terms of the lease. As to this, plaintiffs claim that they not only leased the space under the sidewalk, but that they acquired an exclusive right to vend liquors and cigars in the theater building; that, as the reconstruction was not complete when they took the lease, the parts of the building where they should sell were not designated until completion, when the same was done by defendants, and this clause was then executed; that thereby they obtained an easement therein irrevocable in character during the life of the lease. The defendants’ answer is that the sale of liquor and cigars in the building was an experiment upon their part, which might prove successful or ruinous, and, as they had expended a very large sum in remodeling the theater, they reserved the right to determine this question after practical trial, and to that end granted nothing more than a license revocable at will; that the word “ permit ” should be so construed as to accomplish this end; that, having tried the experiment, and found it ruinous to their business, they have simply exercised the right which they have reserved.

A license may generally be said to be an authority to do a particular act or series of acts upon the premises of another without having any absolute estate therein, is not assignable, and, before being acted upon, may be revoked at pleasure. The act authorized may not, in many instances, be interrupted by revocation during process of performance, but usually it is revocable at will. Mumford v. Whitney, 15 Wend. 381; Fargis v. Walton, 107 N. Y. 398; 12 St. Rep. 60. While an easement gives an estate or interest in the land for a specified period, is assignable and irrevocable, and gives the party right of entrance thereunder at all times. Pierrepont v. Barnard, 6 N. Y. 279; Wiseman v. Lucksinger, 84 N. Y. 31. There has been much difference of opinion expressed in the early cases upon the application of the rule to particular facts having regard to whether the claimed right rested upon a license or an estate. But it seems to be now pretty firmly established that mere words will not govern, but the court will look at the nature of the right, rather than the name by which it is called. And while, in the present case, the language used in the lease granting the right to sell, in a strict sense, are words of license, yet the court is not bound by the technical meaning of the words, and will look at the end sought to be accomplished by the instrument, in the light óf surrounding circumstances, force being given to practical construction of the instrument by acts of the parties, where such construction does not do violence to its terms. Greenwood L. & P. J. R. Co. v. New York & G. L. R. Co., 134 N. Y. 435; 47 St. Rep. 550 ; Hathaway v. Power, 6 Hill, 456; Stone v. Clark, 1 Metc. (Mass.) 378; Lanman v. Crooker, 97 Ind. 163. The rule is also recognized in Wiseman v. Lucksinger, 84 N. Y. 41, that where there is an express agreement or conduct, either actively or by acquiescence, which has led the party to make valuable improvement or erect permanent structures, or do other things which would make the assertion of the legal title operate as a fraud upon the equitable right, then an easement will be inferred. And this is true even though the original right was revokable as a license, if the licensee had expended money on the strength of it. Greenwood Lake & P. J. R. Co. v. New York & G. L. R. Co., 134 N. Y. 440; 47 St. Rep. 550. It appears here that the reconstruction of the theatre was upon a general plan to make the bar accessible to the patrons of the house, and also to provide for service in the building when the patrons chose to order refreshments served there. To this end all the structures erected were permanent in character, and tend to indicate a design that the bar and theatre should be run in conjunction. It is quite evident that the value of the bar depended very largely upon its continued operation in connection with the theatre. Indeed, this is the element, practically, upon which value of the lease depended; at least it may be so found upon the evidence by the trial court. This was the condition -contemplated when the lease was drawn, and it is not questioned, or at least could not be with any force, that both parties intended that liquors from the bar would be permitted to be sold in some part of the house; and this intention, was carried out when the theatre opened. Permission was then given to sell in all parts of the house, except it be the gallery. Upon the faith of this right, plaintiffs procured the concert hall license, and made the further expenditure for the roof garden; and I think it must be assumed they increased the expenditure in fitting up the bar, in part at least, upon the right providing for sale in the building. If defendants had refused, without assigning any reason, at the opening of the theatre, to permit plaintiffs to enter the building and sell, as they would have had the right if defendants’ contention be upheld, there would have been presented the condition that, although the instrument contemplated that the defendants would permit them in some place, upon the faith of which they had made valuable improvements, and upon which depended very largely the value of the lease, yet that they were helpless, and at the mercy of defendants in the exercise of the contemplated right. A construction which works such results ought not to be placed upon the contract, unless it be a necessary construction. Russell v. Allerton, 108 N. Y. 288; 13 St. Rep. 629. It is claimed that this rule does not apply, for the reason that it was entirely competent for the parties to so contract, and that contracts for work to be done or acts performed to the satisfaction of parties have been upheld; citing Daveny v. Shattuck, 9 Daly, 66, and many other like cases. This rule only survives in those- cases where personal taste, preference, or convenience, etc.,.is the object of the contract. Here the object is different, and, if defendant has bound himself, so that he ought to permit, then the contract will compel him to do so, or, having acted, will continue the rights secured. Boiler Co. v. Garden, 101 N. Y. 387, points out the distinction. The permit here, however, was granted, and plaintiffs incurred expense and made expenditure upon the faith that it would be continued, and, if we assume that the right first obtained was revokable, yet, having entered upon its performance, and made expenditures in contemplation of it permanency, brings the case within the rule laid down in the Wiseman and Greenwood R. Cases, already cited. It is not necessary now to hold that the-result here suggested is the law of the case. It is sufficient to say that upon the complaint and affidavits a prima facie case upon these questions is made out, and upon a trial, when all the facts are developed, a court ma.y be able to find that the parties intended, and, in fact contracted for, an easement instead of a license, or the reverse. Upon such a trial, all of the facts tending to show that the sale of liquors was an experiment, and that when tried it was found ruinous, and that such condition was contemplated when the contract was made, will be considered, and may be found of sufficient cogency to support the construction contended for. That all the facts surrounding the transaction, and the acts of the parties in connection therewith, can then be considered, is abundantly established in Woolsey v. Funke, 121 N. Y. 87; 30 St. Rep. 768; Bank v. Kaufman, 93 N. Y. 281; Springsteen v. Samson, 32 N. Y. 703. The plaintiffs being in possession at the commencement of this action, and having been prosecuting their business under the lease, no injustice is done in continuing them therein, and allowing the parties to have a trial upon the merits of the respective claims, instead of allowing defendants to determine the rights of the parties by excluding plaintiffs from the building. The facts present a case for equitable cognizance and the granting of a preliminary injunction. Atlantic & P. Tel. Co. v. Baltimore & O. R. Co., 46 N. Y. Supr. Ct. 415; San Pema Hotel Co. v. Brennan, 46 St. Rep. 827. It is quite clear that damages could not be proved by plaintiffs with precision, and while, doubtless, some basis could be laid for their measurement,it would contain a large element of uncertainty, and cannot be adequately proved. Tiiis authorizes the inference of equity, preventing the injury. Christie v. Shankey, 12 St. Rep. 657. The parties to this action are now in the situation that they were in when the action was commenced, and it is concluded to leave them exercising such rights, and allow the injunction, as previously modified, to stand.

The motion is denied, with $10 costs.


author: Pryor, J.

text:
    Julia Caldwell, Resp’t, v. Erie Transfer Company, App’lt.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    Carriers — Liability.
    Receipt by a common carrier of baggage in good condition, and its delivery in a damaged state, impose upon Mm the burden of exoneration from a prima facie liability.
    Appeal from a judgment entered in favor of plaintiff.

      Andrew Wesley Kent, for app’lt; Louis J. Vorhaus, for resp’t.
   Pryor, J.

In an action against the defendant transfer company (a common carrier) for injury to the plaintiff’s baggage, the single question is whether the evidence be sufficient to support the judgment for plaintiff. The injury was from the wetting of the contents of a trunk. The trunk was brought by railway from Baltimore, and at Cumminipaw was delivered into defendant’s custody for carriage to plaintiff’s residence. The evidence is ample to support the conclusion that when delivered to the railroad company in Baltimore, the trunk and its contents were in good condition, and that, when examined by the plaintiff at her residence on the day she received them from the defendant, they were damaged by water. The complaint is a defect of proof of the condition of. the baggage when taken into the defendant’s custody.' But it could not have sustained the injury in transit by rail, for no rain fell during that interval. Indeed, that, when delivered to defendant, the trunk was in good condition, is established by the testimony of defendant’s own servants. Its superintendent, who saw the trunk in the baggage room, says it was “ in good order”;, and the driver who received it for delivery to plaintiff swears that it was “ perfectly dry.” Waiving, then, the presumption that a connecting carrier receives goods in the condition in which they were delivered to the initial carrier, Myerson v. Woolverton, 9 Misc. Rep. 186; 61 St. Rep. 78, here was positive proof that plaintiff’s baggage was uninjured when taken by the defendant. Receiving the baggage in good condition, and,, delivering it in bad, it was incumbent on defendant to exonerate-itself from liability. 4 Lawson, Rights, Rem. & Prac. section 1860, and citations in note. Supposing, however, the burden on plaintiff to prove defendant’s negligence the cause of the damage,, evidence enough was adduced to authorize the inference that the-injury was the effect of a careless exposure of the trunk to the perils of a rainstorm.

The judgment, being unaffected by error, and manifestly just, is affirmed, with costs.

All concur.


text:
    Howard T. Marston et al., App’lts, v. Gustave A. Baerenklau, Resp’t.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    1. Pleading — Vabiance.
    When the complaint counts only on a special agreement to pay a certain sum for a designated service, and the plaintiff's evidence establishes such agreement, and no amendment of the complaint is requested, proof of the value of the service is inadmissible.
    2. Appeal — Objections waived.
    When, in such case, the plaintiff acquiesces in the submission to the jury of a single issue as to the special agreement, he cannot be heard on appeal to object that he should have been permitted to recover on a quantum meruit.

    Appeal from a judgment of the city court, affirming a judgment entered on a verdict in favor of defendant.

      William E. Morris, for app’lts ; James P. Niemann, for resp’t.
   Pryor, J.

The action is solely and exclusively on a special agreement by the defendant to pay the plaintiffs $250 for the probate of a will. The complaint neither makes claim for the value-of the service nor alleges the value of the service; and so was plaintiffs’ evidence. The testimony of Bilan was to an express. contract by the defendant to pay the plaintiffs $250 for the specific service. The case was so presented to the jury in the charge of the court, — as depending upon an agreement to pay that sum ; and the plaintiffs acquiesced in such submission of that single issue. How, now, may they object that they were not allowed to claim the value of their service, and recover upon a quantum meruit ? Suggesting no amendment of the complaint on the trial, they are not to be permitted on appeal to impute error to the court in excluding proof of a cause of action of which before there was no intimation. By the pleadings and by plaintiffs’ evidence, the defendant was admonished to prepare for a trial of no ether issue than the fact of the alleged agreement; and he was not to be surprised by the litigation of another and inconsistent controversy. Romeyn v. Sickles, 108 N. Y. 650 ; 13 St. Rep. 864. It results that the learned trial judge ruled rightly in excluding testimony as to the value of plaintiffs’ services.

The other exceptions as to the evidence are equally untenable. Explanation of plaintiffs’ demand upon Baaden for a part of the fee received by him was clearly in order, as tending to support defendant’s contention that their client was not he, but Baaden. So, proof that the plaintiffs agreed to assist Baaden m the probate in requittal of past favors negatives the allegation of an agreement with defendant for compensation. The evidence that the executor never employed plaintiffs went straight to the main issue in litigation. If the court erred in permitting proof of a possible allowance to plaintiffs by the surrogate, to which only a general objection is interposed, the error was repaired by the explicit and repeated instruction that such allowance would not affect the Validity of plaintiffs’ claim under the alleged contract.

Plaintiffs complaint that “the verdict is against the evidence and weight of evidence; ” but, as they made no motion for the direction of a verdict in their favor, “ no exception presents the question whether there was sufficient evidence to sustain the verdict; and, however unjust it may be, this court is powerless to give relief.” Schwinger v. Raymond, 105 N. Y. 648; 7 St. Rep. 544. We may add, however, that, upon an attentive examination of the evidence, our conclusion is in accordance with the jury’s.

Judgment affirmed, with costs.

All concur.


text:
    Carrie Isabelle Bacon, App’lt, v. Frederick F. Proctor et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    1. Contracts — Cancellation.
    A mutual understanding of the parties in the formation of an oral contract that it may be canceled on two weeks’ notice gives authority to either to terminate it on such notice.
    2. Same — Consideration.
    The recipocal release of their respective obligations by the parties to a contract is a sufficient consideration for its rescission.

      3. Same — Ignorance of contents.
    The obligation of an instrument which one signs without reading is not avoided by mere ignorance of its contents.
    Appeal from a judgment entered on a verdict in favor of defendants, and from an order denying a motion for a new trial.

      David M. Neuberger, for app’lt; P. C. Tallman, for resp’ts.
   Pryor, J.

The appeal is manifestly without merit. The action is for damages from a breach of a contract of employment. That, by oral agreement, the plaintiff was engaged as an actress in the defendants’ theatrical company, is conceded. But the defendants contend that the term of her employment was indefinite; that they had a right to discharge her on two weeks’ notice ; and that, by mutual consent, the contract of service was rescinded. Assuming the truth of the plaintiff’s story, that her engagement was for thirty weeks, and still it appears by her own evidence that she has. no cause of action. She testified at follows :

“ Q. Isn’t there a custom, which has grown into law, that any artist or any manager can, by giving two weeks’ notice, cancel a contract? A. It is. Q. You could have two weeks’notice, and canceled your engagement, your contract, and they could have given you the same? A. Yes, sir. Q. In giving two weeks’ notice to the defendants you could have canceled this contract that you made with Mr. Turner, on their giving you two weeks’ notice it could also be canceled? A. Yes, sir.

The two weeks’ notice to plaintiff being an undisputed fact,, what is left of her case ? At this point the court might well have stopped the trial by a direction for the defendants. Counsel for the plaintiff contends that the evidence was inadmissible, because “ immaterial and irrelevant.” Material and relevant in an emphatic sense, it was beyond controversy; and, if incompetent, its exclusion should have been demanded on that specific ground. Tooley v. Bacon, 70 N.Y. 84, 37. The answer, besides taking issue on the allegation of an engagement for a definite term, affirmatively pleaded a contract subject to termination on two weeks’ notice. The question, as seeming to call for a conclusion of law, may have been irregular; but, the response being the statement of a fact, the plaintiff is not prejudiced.

Again, plaintiff admits that, on payment of her last week’s wages, she subscribed the following document: “Received from Messrs. Proctor and Turner payment in full for all salary, liability, indebtedness, and cancellation of contract for the season.” Here is a mutual agreement of rescission, and upon an adequate consideration in the reciprocal release by the parties of their respective obligations. Plaintiff says she did not read the paper. But what of it? It was her own fault and folly to sign without reading: and in the absence of fraud upon her, of which there is no proof, she is bound by the paper, though ignorant of its contents.

It is obvious from the grounds upon which we dispose of the appeal that none of the imputed errors in the record are of possible detriment to the plaintiff. Judgment and order affirmed, with costs. All concur.


text:
    Simon Bondy et al., Resp’ts, v. Abraham Collier, App’lt.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    Arrest — II ndertaking .
    Upon adjudging an order of arrest invalid because of a defective under- • taking, the court has no power to refuse to vacate the arrest, on the condition that a new and sufficient undertaking be given.
    Appeal from an order of the city court affirming an order denying a motion to vacate an order of arrest. a
    The order affirmed by the general term of the city court was as follows:
    “ The motion to vacate the order of arrest granted by me on October 9, 1894, against the defendant Abraham Collier, on the-papers on which the same was granted, and upon a notice of motion hereto annexed, proof of service, a copy of which is also-hereto annexed, having been made before me this day on all the grounds specified in said notice of motion; and after hearing Edward Kaufmann, Esq., of counsel for said defendant Abraham Collier, for the purposes of this motion only, and Alexander Blumenstiel, Esq., of counsel for plaintiffs, in opposition thereto, it is ordered that the said motion be granted, unless plaintiffs execute, serve, and file a proper and sufficient undertaking, as provided by the Code, within five days from entry and service of a copy of this order, in which case, motion denied.”
    The defect in the original undertaking was that in the accompanying affidavit it did not appear that the sureties were residents or freeholders or householders within the state as required by section 812 of the Code of Civil Procedure.

      Edward Kaufmann, for app’lt; Blumenstiel & Hirsch, for resp’ts.
   Pryor, J.

The motion to vacate the order of arrest proceeded upon the grounds of insufficiency in the affidavit, and defects in the undertaking. Since the affidavit exhibits some evidence of the facts requisite to the arrest, the affirmance of its sufficiency by the court below is conclusive with us. Wright v. Brown, 67 N. Y. 1; Liddell v. Paton, id. 392. Similarly, as the court below has adjudged the order of arrest invalid for defects in the undertaking, we are precluded, on an appeal by the defendants only, from gainsaying those defects, or the invalidity of that order. But though the order was invalid, for the defects in the undertaking, the court nevertheless declined to vacate it, on the condition that “ within five days the plaintiffs execute, serve, and file a proper and sufficient undertaking.” The contention of the appellant is that the court had no power to allow a substituted undertaking, but, instead, should have absolutely set aside the order of arrest; and we are of' that opinion. Here, be it observed, is not an amendment of the undertaking upon which the order of arrest issued, but the allowance of a new and independent undertaking, to uphold an arrest already accomplished. Where is the authority for the exercise of such jurisdiction, either in the statute or the adjudications? Certainly, the respondents cite none to the point, for the provisions: of the Code and the decisions they adduce go only to justify an amendment of an existing undertaking. An amendment operates nunc pro tune, and validates and sustains the thing amended, while the new undertaking, replacing the old, has its inception at the moment of its execution, and is incapable of supporting an arrest already in effect. By the adjudication of the court below, the undertaking on which the order of arrest depends was fatally defective, — insufficient to upheld the order; and yet the arrest is suffered to stand, on the condition of another and new undertaking. The defendant may be held for five days upon the invalid order, and then the new undertaking is to reach back, and rehabilitate that invalid order. This will never do. The liberty of the citizen is not the sport of judicial discretion. The defendant could be arrested only upon lawful process, and he is not to be detained upon the contingency that the illegal order on which he was taken may be made good by subsequent compliance with an indispensable condition precedent.

Order of general and special term reversed, and order of arrest vacated, with costs to appellant in both courts.

All concur.


text:
    Jennie Walsh, as Trustee, etc., Resp’t, v. National Broadway Bank, App’lt.

      (New York Common Pleas, Special Term,

      Filed June 3, 1895.)

      1. Monet bad and beceived — When lies.
    Money intrusted to an agent for specific investment, but by him diverted from its destination, and deposited in bank to his personal account., may, after demand, be recovered of the bank by the principal, in an action for money had and received, although at the time of the deposit the bank had no notice of plaintiff’s right, and although at the time of the demand the plaintiff did not present the depositor’s check.

      % Same — Pabties.
    In such action the agent depositor is not a necessary party defendant.
    Appeal from an interlocutory judgment overruling a demurrer to the complaint.

      W. C. Beecher, for app’lt; Richard O'Gorman, for resp’t.
   Pryor, J.

The appeal is from an interlocutory judgment overruling a demurrer to a complaint. The demurrer imputes to the complaint two infirmities, — insufficiency in substance, and defect of parties. The action is at law, for money had and received, and the complaint alleges that the plaintiff, desiring to invest $2,000 in bond and mortgage, drew and indorsed a check for that amount, and delivered it to Charles J. Breck, with instructions so to invest it; that, instead, Breck, “ in violation of his duty,” deposited the check with the defendant, to his personal account; that the defendant collected the amount of the check, and placed it to the credit of Breck; that, of Breek’s deposit, $1,652.72, are still held by the defendant; and that upon demand the defendant refused to pay this money to the plaintiff.

Upon the rule o£ construction that a complaint “ is deemed to allege what can bv reasonable and fair intendment be implied from its allegations” (Marie v. Garrison, 83 N. Y. 14), the complaint before us shows that Breck received the check for investment in behalf of the plaintiff; that, instead, he diverted it from its destina-, ti on, and, in fraud of his trust, deposited it with the defendant for his personal account; and that, of the amount of the check collected by the defendant, it retains the balance sought to be recovered. By the demurrer these facts are admitted, and yet the defendant resists plaintiff’s claim to the money. The controversy is exclusively between the plaintiff and the defendant, and its determination depends upon the question, which of the parties has the better right ? The demurrer concedes that the money was plaintiff’s, not Break’s, and that defendant holds it merely as a depository for Breck. But, being the money of plaintiff, and wrongfully deposited by Breck to his own account, by what right may the defendant retain it from the lawful owner ? The answer is that by the deposit the money became the property of defendant, and it became a debtor to Breck for the money. Undoubtedly, this is the relation between Breck and the bank; but the plaintiff is not a depositor with the defendant, and the deposit of her money by Breck, as his, was utterly ineffectual to divest her title. O'Connor v. Bank, 124 N. Y. 324, 333 ; 36 St. Rep. 277. In the absence of estoppel, one may be deprived of his property by the wrongful act of another. The defendant’s position is as custodian of a fund to which, ex aequo et bona, the plaintiff is entitled; and, by virtue of elementary principles, she may reclaim it in a cominon-law action, even though the defendant received it without notice of her right. Roberts v. Ely, 113 N. Y. 128 ; 22 St. Rep. 185 ; Chapman v. Forbes, 123 N. Y. 532 ; 34 St. Rep. 351; Importers & T. Nat. Bank v. Peters, 123 N. Y. 272; 33 St. Rep. 182; O'Connor v. Bank, supra; American Sugar Refining Co. v. Fancher, 145 N. Y. 552, 557; 65 St. Rep. 506.

It is insisted further that, at all events, the defendant is not compellable to part with the money except upon the authority of Break’s check; and this is so, as between Breck and the defendant, because such is the contract between a bank and its depositor. But we say, again, that the plaintiff made no deposit with the defendant; and, obviously, the obligations between bank and depositor are not predicable of the relation between these parties. The defendant holds the plaintiff’s m'oney by wrong, and the only obligation between them is the promise of the defendant, implied by law, to refund to plaintiff on demand.

Beyond doubt, the complaint exhibits a cause of action for money had and received.

Nor is there a defect of parties. The contention is that Breck should be a defendant; but why ? The demurrer admits that he has no right to the money. Where, then, is his interest in the action ? In a common-law case, a plaintiff is not compellable to introduce other defendants; and, even if the action be in equity, Breck is still not a necessary party, because, having no right, there may be a complete determination of the controversy without, his presence. Code, § 452; Chapman v. Forbes, 123 N. Y. 532; 34 St. Rep. 351. Indeed, the conclusions would be the same though he asserted a right, for the issue is between plaintiff and defendant only, and that may be adjudicated without Breclc’s intervention. His right, if any, would not be affected by the judgment between these parties. The defendant urges that it would be thus exposed to the peril of a double recovery, — by the plaintiff and by Breck,— to which the threefold answer is : First, that it is only when the controversy may not be determined between the parties present, “ without prejudice to the rights of others,”1 that those others should be brought in; secondly, that,it is by the defendant’s neglect to interplead Breck that it incurs the hazard, of which it complains; and, thirdly, that an action by Breck for the money would be defeated by proof of payment to true owner under compulsion of a judgment. The demurrer being tenable upon neither ground, the judgment is affirmed, with liberty to plead over, on the usual terms.

All concur.


text:
    The People ex rel. William S. Devery, App’lt, v. James J. Martin et al., as Police Commissioners, etc., Resp’ts.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    1. Policemen — Discharge—Certiorari. •
    On certiorari to the board of police commissioners, the general term has juiisdiction to review a decision of the board denying an adjournment of' the trial of a policeman.
    2. Same — Refusal to postpone hearing.
    If such refusal to adjourn was so clearly against the proof of the police man’s illness and inability to attend as to show an abuse of discretion, Ms conviction in his absence, and unheard, is a trial without an opportunity to defend; and such conviction will be set aside, and the policeman reinstated.
    Certiorari to review the decision of board of police commissioners of the city of New York, in dismissing, relator from the police force.

      Edward C. James and Abm. I. Elkus, for relator; Francis L. Wellman, for resp’ts.
   Pryor, J.

In compliance-with a.writ of certiorari out of this court, the respondents make return of their proceedings upon the trial and conviction of the relator of offenses, the commission of which, if legally ascertained, justifies his dismissal from the police force. The relator challenges the validity of the sentence of dis- - missal upon two grounds: First, that he was denied an opportunity - of appearing and making defense to the charges of which he is found guilty; and, secondly, that the evidence, though uncontroverted, is insufficient to sustain the conviction.

The question to be determined by this court on the return o£ the writ is whether the board of police commissioners, in the conviction and dismissal of the relator, violated any rule of law affecting his rights, to his prejudice. Code. Civ. Proc. § 2140, subd. 3 ; People ex rel. Cook v. Hildreth, 126 N. Y. 360, 364; 37 St. Rep. 393. That the relator was entitled, of right, to make defense to the accusations upon which he was arraigned — involving his personal presence at the trial, the confronting of wittnesses against him, and the production of evidence in his behalf — is a fundamental and inviolable principle of law.

“It is a rule founded on the first principles of natural justice, older than written constitutions, that a citizen shall not be deprived of his liberty or property without an opportunity to be heard in defense of his rights, and the constitutional provision that no person shall be deprived of these without due process of law has its foundation in this rule. This provision is the most important guaranty of personal rights to be found in the federal or .state constitution, and it extends to every case which may deprive a citizen of life, liberty, or property, whether the proceeding be judicial, administrative, or executive in its nature." Stuart v. Palmer, 74 N. Y. 183, 190.

Hence, an assessment by commissioners was annulled, for want of opportunity to the property owner to be heard upon it. Similarly, in People ex rel. Heiser v. Gilon, 121 N. Y. 551; 31 St. Rep. 890, where a board of assessors gave notice of an assessment upon the property benefited, but none as to a hearing in regard to damages, upon certiorari the court of appeals vacated the determination of the board for the reason that in making the award it “failed to observe an essential requirement in all judicial proceedings, namely, notice to the party interested in the determination, and an opportunity to be heard." Independent^, therefore, of statute, opportunity to be heard and make defense was the inviolable privilege of the relator. But, out of abundant caution, the legislature has expressly provided—

“That no member of the police force shall be removed or dismissed until written charges shall have been made and preferred against him, nor until such charges have been examined, heard, and investigated upon such reasonable notice to the member charged."

Accordingly in People ex rel. McAleer v. French, 119 N. Y. 502; 30 St. Rep. 72. the court of appeals held that:

“The members of the police force of the city of New York have a permanent tenure of office, and cannot be dismissed until after charges have been preferred, examined, heard and investigated, as provided by the statutes and the rules adopted by the board of police commissioners.”

Again, in People ex rel. Weston v. McClave, 123 N. Y. 512, 516; 34 St. Rep. 274, the court say :

“The commissioners prescribe rules for the government of the force, and by which the personal and official conduct of its members shall be regulated. They are empowered to punish a member who is guilty of an offense, * * * and the only limitations upon their disciplinary powers is the express one: that atrial shall be had upon written charges, * * * and the implied one: that that trial shall be a proceeding fairly conducted ; that the decision shall be based upon evidence of the truth of the. charges, and that no immunity or privilege secured to the accused, by the law of the land shall be violated.”

In the order adjudging the charges against the relator to be true, and dismissing him from office, it is alleged that he “appeared and answered at the time and place required by said notice that the charges were “duly brought to a. hearing, and duly tried, heard, publicly examined, and investigated in the manner required by law and the rules and regulations of the said board and that the relator was “afforded a full opportunity to be heard in his defense.” The statement that the relator “appeared and answered at the time required by said notice” is absolutely without foundation. In’their return to the writ the respondents suppress°the facts of the case. They say merely that notice of the charges and of the hearing was served upon the relator on the 6th of August, 1894, and that thereafter, on the 15th of August, he appeared by his attorneys, and the trial proceeded. The truth is that on the 6th of August the relator was cited to appear on the 9th for trial; that apprised on the 8th of his inability to be present, by reason of illness, the board adjourned the trial indefinitely; that on the 13th of August the trial was set for the 15th ; that, for causes hereafter appearing notice of the trial on the 15th was not communicated to "the relator, and he was not aware of it until long after the event. And yet, from the return, the' obvious and inevitable inference is that the relator was admonished .on the 6th of August of his trial on the 15th. On the 6th, says the return, the relator had notice of the charges, and the time of trial, and “thereafter, on the 15th of August, at the time mentioned,” the trial proceeded. By omitting the time mentioned in the notice of the 6th, namely, the 9th, the idea is conveyed that the 15th was the day designated in the notice of the 6th, and that so the relator was duly apprised of the trial. Equally misleading and unwarranted is the statement in the order of dismissal that the relator “appeared and answered.” From these words the inference is .that he appeared in person, and made answer to the charges. He did neither. He appeared only by attorney, not attorneys; and he appeared for-the exclusive purpose of procuring an adjournment of the trial because of the illness of his client and, the adjournment denied, he took no further partin the proceeding. With exquisite art, counsel for the prosecution endeavored, over and again, to beguile the relator’s attorney into some act that would be equivalent to a participation in the trial; but, with equal adroitness and persistency, the attorney kept aloof from the proceeding, except - to move ail adjournment.

The question is, had the relator opportunity to be heard and defend at the trial on the 15th of August ? The respondents urge that we have no jurisdiction to review their decision in the refusal of an adjournment of the trial; and they cite People ex rel. Doherty v. Board of Police Com’rs, 65 St. Rep. 175, in support of the contention. But the point there adjudged, on application for a suspension of the trial, was that:

“The question of the reasonableness of the time allowed for ex- ■ planation and preparation to meet the charges rests, to a great extent, in the discretion of the board; and the manner in which the discretion is exercised will not furnish a ground for reversal of the decision, in the absence of proof that it was capriciously exercised, ,to the prejudice of the relator.”

In People v. Thompson, 91 N. Y. 452, the power of revision is conceded, where it appears “that the discretion has been abused.” Regarding the request the relator as for an adjournment, merely, we should not hesitate to hold that, upon the evidence presently considered, the denial of the application was capriciously exercised, and the discretion of the board abused. But, while the application was in form for a postponement of the trial, it was in effect a demand for a trial in the legal sense; that is, for a trial in which the accused might be present and make defense. Prostrate and powerless by physical illness and mental malady; unable to attend, and incompetent to defend, — the alternative presented to the relator was either to be condemned unheard, or to obtain an adjournment. The adjournment was denied, and he was convicted without a trial. By section 2140, subd. 3, of the Code, the violation of any rule of law affecting the rights of the relator, to his prejudice, is reviewable on certiorari. The right to be heard and make defense was his primary and supreme right, standing at the threashold of the trial, and, in its denial, involving a refusal of all his rights. No trial is more detrimental, even, than a trial in which auxiliary rules for the protection of the accused are disregarded. In the denial of a trial, all the rights of the relator were annihilated at a blow. But counsel for respondents argues that the relator was not prejudiced by the failure to defend, because the offenses proved justify his dismissal. How proved ? by denying relator the privilege of defending ; of cross-examining witnesses, and adducing evidence in disproof of the charges. From such an ex parte inquisition, angelic innocence might not escape. The refusal of the adjournment — that is, the denial of the trial which the law guaranties — was of prejudice to the relator, and no court will listen a moment to a contrary contention.

If, however, the relator was not ill and incompetent on the 15th of August; if, as the respondents insist, the illness and incompetency he affected was a sham and a fraud contrived only to defer the trial, while in fact he was able to attend and make defense, — then, in law, he has not been condemned unheard, and we must ratify his sentence of dismissal. And this question is open to our review, not only as involving a violation of right, but by subdivision 5, section 2140, of the Code, which authorizes us, on certiorari, to reverse a finding of fact because contrary to the pre ponderant proof. In the return these facts appear, without contradiction : That on the 27th of July, 1894, after official examination by a police surgeon, the relator was reported ill and unfit for duty; that he was thereupon excused from duty, and has not since been ordered on duty; "that no inquiry was then made, as provided by the rules of the department, to ascertain whether his sickness was real or pretended; that, on a report by the surgeon of his illness to the board, his trial, set for the 9th of August, was indefinitely postponed. Thus was the illness of the relator accepted as a fact by the board, and deemed so serious as to excuse him from duty, and exempt him from trial. How happened it, then, that five days afterwards, on the 13th, he was suddenly summoned for trial on the 15th ? It is said that the illness of the relator was feigned to avoid a trial of the charges against him. But • he was ill on the 27th of July, and the charges were not served uptil the 6th of August; and, when served, he exclaimed, “My Grod ! I did not expect this so soon.” This involuntary ejaculation, testified to by the man who made the service, is significant of the relator’s surprise at the imminency of his trial, and precludes the presumption that he was shamming sickness to elude it. Indeed, the same witness (he appeared for the prosecution) confessed that the relator was not expecting the summons for trial. That his illness was a pretense, premeditated to avert the trial, rests on nothing stronger than suspicion, and is discredited by uncontroverted facts. On August the 8th, Dr. Charles E. Nammack, a police surgeon, reported to the board (these respondents) that on the 7th he 'made “a careful physical examination” of the relator, and found him “unfit for duty, by reason of active congestion of the brain,” and “mentally incapable of directing the conduct of his defense.” This was the official certificate of their own subordinate, and was the evidence upon which they adjourned the trial. Again, on the 14th of August, Police Surgeons Nammack and Dexter, with Dr. Peterson, an eminent specialist, and Dr. Becker, relator’s regular physician, made another examination of him, with the result that he was found to be still ill, and incompetent for duty or mental action. Nevertheless, the board, denying the motion for an adjournment, proceed to try the relator, and in his absence, and without defense made, found him guilty upon each of fifty-six charges, and sentenced him to dismissal from the service. Now, what was the evidence upon which the board refused the adjournment ? In favor of the adjournment, relator’s counsel presented and filed the certificate of Police Surgeon Nammack, and the affidavits of Drs. Peterson -and Becker, and of relator’s wife and attorney. Respondents seek to detract from the effect of Dr. Nammack’s statement, because not under oath. But he was an officer of the department, amenable to its dicipline, and subject to expulsion for falsehood or prevarication in his official communications with his superiors. This sanction, independently of his high character, as attested by his retention in the department, was certainly a sufficient guaranty of the truth of his statement. Dr. Becker deposed, on the 14th of August, that he was the attending physician of the relator; that he was consulted by relator on the 4th of August; that he found him then suffering from, premonitory symptoms of cerebral hyperaemia, or congestion of the brain ; that he had been in professional attendance on relator since the 4th of August; that he advised relator to throw aside all business, to have perfect rest and quiet, and to leave the city ; that upon relator’s return from Rockaway, on the 6th, he was suffering from cerebral hyperaemia; that he has visited relator every day; that relator is confined to his house and bed by illness; and that “it is impossible for him to attend to any business whatever, or to appear in court, or undergo a trial, or to consult .about legal proceedings.” Dr. Peterson testified that on the 14th of August he made a thorough examination of- relator : that relator was “suffering from cerebral neurasthenia, severe «enough to require that he be kept in perfect quiet for some weeks”; that relator was “not capable of appearing for full •trial on the 15th, nor is he capable of directiog or consulting with counsel.” Police Surgeon Nammack gave the symptons of relator’s malady, and certified to the board that “he was mentally incapable of directing the conduct of his defense,” or of performing his official duties, and that it would require “careful treatment for at least a month to restore him to health.” Unless we assume that all these gentlemen were in conspiracy to rescue relator from a trial, and to that end testified falsely, we cannot «doubt that he was in a condition of .physical and mental prostration which made his presence at the trial impossible. Mr. Elkus swore to the departure of Col. James, relator’s counsel, from the country on the 18th of July, and that August 15th he was on the Pacific Ocean, en route for Japan or Alaska. The affidavit of Mrs. Devery shows that on August 13th she found “ under the ■door” of her residence the notice of that date, requiring relator to appear for trial on the 15th; that, as advised by her husband’s physician, she did not deliver the notice to relator, and that he is still ignorant of its existence and contents; that on the 10th and 11th of August she refused to allow Inspector Conlin and Drs. Hamilton and Fisher to see relator, “ because he was and is too ill to do so; ” and that relator “has been ill at home, and on sick Heave, since about July 27th, and unable to attend to any business.” "What do respondents show in justification of their refusal to adjourn the trial on the 15th of August. • First,, the testimony of •Supt. Byrnes that he saw the relator on the 3d of August; that -relator then “ looked natural; ” that he saw no change in relator’s •appearance; that relator said on more that one occasion that “ his head bothered him, and he felt kind of sick, and things like that.” Then the testimony of Sullivan, who served the notice of trial on relator, shows that he didn’t look closely at relator; that he didn’t notice anything unusual; that he couldn’t say whether relator was in good health or not; that relator “ complained; ” "that when he served the notice on relator the doctor, who was then present, said the relator was in no condition to assume the responsibility of accepting service of the notice. Next, Inspector Uonlin details the circumstances of the attempt to see relator on the 10th and 11th of August by the persons appointed by the hoard to examine him, namely, that Mrs. Devery refused to let him and Drs. Hamilton and Fisher in the house, saying: “ You -cannot come in. My husband is a very sick man. My husband’s life is more to me than all the rules of the department, or ■of the police, or anybody else.” On the morning of the 11th, Mrs. Devery again refused to admit the party — reinforced by Dr. Nammack — into the house. That, asked by Dr. Nammack if she would not allow him, as police surgeon, to see the relator, sh& answered: “No, sir, not even you. My husband is a very sick man, and his health is dearer to me than all the police surgeons of the police department, inspectors, or anybody else.” She could, have had no evil intent in denying Dr. Nammack admission, for she knew he was friendly to her husband, and had certified his illness. Next is the testimony of Louise Shilling, daughter of a hotel keeper at Rockaway, at whose house relator stopped when away from the city, by command of his physician. This witness states that “relator seemed to be well, as far as I could see; that he went to his meals, and was around with his family, sitting on the porch mostly.” Finally, we have the testimony of Dr. Hamilton, which consists of a criticism of Police Surgeon Nammack’s report, and the avowal of an opinion that the symptoms therein detailed of relator’s condition were not indicative of an disability in relator to appear for trial. Against positive proof of relator’s-illness and incompetency by witnesses personally cognizant of his condition — police surgeons, attending physician, and eminent specialist — who had thoroughly examined and treated him, and who were free from interest to misrepresent, what avails the-speculation of an expert who never saw the relator, and who-speaks only in interpretation of hearsay indications? Of what-value, as proof of the physical and mental health of the relator, is the opinion of a woman who observed him casually, and drew her inference from the circumstances that he went to the dinner, table and sat on the porch ? The testimony of Byrnes, Con-lin, and Sullivan signifies nothing, or, if important, tends to the fact of relator’s illness. Brain disease is an occult malady, except to the educated eye.

It is urged that the refusal of Mrs. Devery to admit the inspector and strange medical men into the presence of the relator is a circumstance of sinister import. But had she not been admonished by the doctor of the imperative need of repose and tranquillity to> the safety of her husband. How, consistently with conjugal duty and devotion, could she permit the intrusion of these persons into the sick room of her suffering husband ? She knew his critical condition, and the voice of the true wife was heard in the excla- - motion that: “My husband’s life is worth more to me than all the rules of the-department, or of 'the police, or anybody else.” But-whatever the construction of Mrs. Devery’s conduct, there is no-proof in the record that the relator was aware of the presence of the party or privy to their exclusion. Moreover, afterwards, on August 14th, two police surgeons examined him, and reported him still unable to attend the trial.

Another fact counsel for respondents urges upon attention, as-of evil import against the relator, which is that he accompanied his motion for an adjournment with no affidavit of his innocence. How could he? The uncontradicted proof is that he did not-know of the trial. Nor was he capable of instructing counsel.

Upon a careful consideration of the case;,we are of opinion that the denial of the motion for an adjournment of relator’s trial, was-so clearly against the weight of evidence as to involve an abuse of discretion, and so opposed to the interests of justice as to require reparation. ■ Notwithstanding relator’s creditable career in the police force — rising from patrolman to captain, and each successive step of promotion attesting his fidelity and efficiency — after all, he may be a guilty man. But the law knows no guilt, except as ascertained by légal means, and a conviction without trial is not a legal procedure. Assuming the guilt of the relator, still, better his escape than the overthrow of the only safeguard of innocence.

Order of the board is reversed, and the relator reinstated, with costs.

All concur.


author: Bookstaver, J.

text:
    Francis A. Clark, Resp’t, v. Charles H. Greenfield, App’lt.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    1. Landlord — Assignment.
    ' A bill of sale by a lessee of property, including a lease for its entire term, operates as an assignment of the lease.
    2. Same — Presumption.
    Where a person other than the lessee is in possession of the demised premises, the presumption is that he is in possession as assignee ofthe lease, and not as undertenant.
    3. Same — Waiver.
    A covenant against the assignment of a lease without the landlord’s consent is waived, where he accepts rent after knowledge of the assignment.
    Appeal from a final order in summary proceedings in favor of plaintiff.

      Samson Lachman, for app’lt; P. C. Palman, for resp’t.
   Bookstaver, J.

In. the summer of 1894 the petitioner and respondent, Francis A. Clark, was the owner, of a saloon on the corner of Twenty-Second street and Third avenue, in this city, of which premises- he was the lessee under a lease from the owner, Patrick Kiernan, which lease has still several years to run. Clark sold this place to the defendant, - Greenfield, for $15,000, of which the sum of $-2,150 was paid in cash. The bill of sale included, among other things, the lease above-mentioned, for its entire term. On making the sale, Clark promised Greenfield to secure Kiernan’s consent to the assignment of the lease, but this he failed to do. On the payment of the cash, Greenfield went into possession. At this time the superior landlord had not been consulted. Greenfield asked Clark to go with him to see the landlord, but the latter refused, and finally Greenfield went alone to the superior landlord, who declined to accept him, but stated he would do so if Clark would come to see him. This Clark refused to do, and.so an arrangement was entered into by which Greenfield paid Clark the monthly rent as it accrued, and the latter paid the amount over to the owner. For the moneys paid to Clark he- gave receipts stating that the moneys were to be paid by him to the owner. In January, 1895, Greenfield paid the rent to the owner directly on the latter’s application, and was given a receipt running to Clark. Greenfield desired a receipt in his own name, but the owner explained that he did not wish to relinquish his right against Clark. Greenfield stands ready to pay his rent to Kiernan, and declined to pay it to Clark, for the month of February, and hence these proceedings were taken ; Clark claiming that the defendant was his tenant, and not Kiernan’s, and that the rent was payable to him. The defendant deposited the rent in court, and appealed from the decision of the justice awarding the nrnount to Clark.

By the bill of sale, the whole lease was conveyed by Clark to 'Greenfield. • The whole premises were covered by the lease, as well as the entire time the lease had to run. No right of re-entry was reserved to Clark. At the time of the sale of the saloon to Greenfield, there was a first mortgage upon the premises to secure cértain promissory notes ; and the price agreed to be given less the cash paid, was secured by a certain mortgage from Greenfield to Clark. Hence it is clear that under that bill of sale no relation of landlord and tenant could exist between the parties thereto. From the evidence on this subject the only inference which can be drawn is that Greenfield was, the assignee of the lease, and the tenant of Kiernan and not of Clark. Where a person other than the lessee is in possession of premises, the presumption is that he is in possession as assignee of the lease, and not as undertenant; 12 Am. & Eng. Enc. Law, 1036 ; McAdam, Landl. & Ten. p. 284; Foster v. Cldham, 8 Misc. Rep. 331; 59 St. Rep. 239; Acker v. Witherell, 4 Hill, 112. An attempt was made on the trial to overcome this presumption by the testimony of Clark, who swore that after Greenfield had seen Kiernan, who would not accept him as tenant, he being unknown to him, he (Greenfield) said he would pay Clark the rent, and that the latter should take care of the landlord, to which Clark replied that he would pay the landlord as usual; and this was continued for some time, the checks for rent being given by Greenfield to Clark, who turned them over to Kiernan, and, upon receiving the checks for the rent, turned those over to Greenfield. This, however, did not create the relation of landlord and tenant as between Clark and Greenfield, nor give him the right of re-entry. At most, it was an agreement between the parties whereby Clark was to be the agent of Greenfield for the purposes of paying the rent Summary proceedings cannot be commenced for the purpose of enforcing such an agreement, or recovering for the breach of it, as these proceedings can only be maintained where the conventional relation of landlord and tenant exist. We therefore think .the justice erred in granting the final order.

It is true that Kiernan refused to formally accept Greenfield. as his tenant, and hence it may be urged that, if Clark is not Greenfield’s landlord, he has none who would be entitled to maintain summary proceedings in case he failed to pay his rent. But with this we have nothing to do. It is sufficient that the conventional relation of landlord and tenant did.not exist between the parties to this proceeding, We think, however, that the covenant in the lease from Kiernan to Ciarle against an assignment or subletting without his consent was waived by his (Kiernan’s) acceptance of the rent, with full knowledge of the assignment of the lease. Murray v. Harway, 56 N. Y. 337; Collins v. Hasbrouck, id. 157; Conger v. Duryee, 90 id. 594; Koehler v. Brady, 78 Hun, 443 ; 61 St. Rep. 49. The mere fact that the landlord, on receiving payment of the January rent, made the receipt out in the name of Clark, does not prevent the operation of this rule. As before stated, we think the bill of sale operated as an assignment of the lease. It passed all Clark’s interest as lessee to Greenfield. The rent was all payable by Greenfield. Mo right of re-entry was reserved by Clark, nor was a surrender of the premises to be made to him. Such a transfer constitutes an assignment, and not an underletting. Bedford v. Terhune, 30 N. Y. 453; Woodhull v. Rosenthal, 61 id. 391; Ganson v. Tifft, 71 id. 46 ; Stewart v. Railroad Co., 102 N. Y. 601; Stover v. Chasse, 6 Misc. Rep. 396 ; 56 St. Rep. 333.

But, even if we are mistaken in this view of the law, still the order should be reversed, as no default in the payment of rent- nor any proper demand of payment was shown. The evidence of the plaintiff did not disclose the amount of rent or the day on which it became payable. Hence no default could be established except by showing an explicit demand. An attempt was made to do this by one McManus, but he simply testified that he made, a demand of the man in charge of the premises. There is no evidence as to who this man was, nor did the witness say what he demanded. The witness Kelly, who is the owner’s attorney, made a demand on Clark on behalf of the owner; but this has no bearing on the case, as at that time Clark was not the tenant.

We, therefore, think that the order should be reversed, with costs to the appellant. All concur.


text:
    Robert Gair, App’lt, v. David Auerbach, Resp’t.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    1. Appeal — District court.
    Upon an appeal from a district court, the' common pleas may examine the evidence and reverse the judgment if the conclusion is, in its opinion, unwarranted.

      % Contract — Performance.
    The contract for printing was held, in this case, to have been performed according to the copy.
    . 8. Evidence — Custom.
    In the absence of a special direction as to the manner of printing candy-boxes, evidence as to the mode in which such boxes were printed and made in the candy trade is inadmissible, in an action on a contract for the manufacture of such boxes.
    Appeal from a judgment entered in favor of defendant.

      John Jeroloman, for app’lt; Moses Esberg, for resp’t.
   Bookstaver, J.

This action was brought to recover for goods sold and delivered. At the close of the plaintiffs case, the court dismissed the complaint, on the ground that “ the goods made and delivered were not according to the sample furnished and were not according to the first proof furnished by the plaintiff to the defendant,” and also on the ground that the plaintiff never completed the entire order. Plaintiff contends that this conclusion was not warranted by the evidence. On such a contention, it is our duty to examine the evidence, and to reverse the judgment if the conclusion is, in our opinion unwarranted. Schumacher v. Waring, 7 Misc. Rep. 161; 57 St. Rep. 539 ; Curley v. Tomlinson. 5 Daly, 283; Macniffe v. Ludington, 13 Abb. N. C. 407; Fixham v. Brown, 3 St. Rep. 608 ; Brown v. Sullivan, 1 Misc. Rep. 161; 48 St. Rep. 685: Siefke v. Siefke, 3 Misc. Rep. 81: 51 St. Rep. 761.

From the evidence it appears that, at defendant’s request, the plaintiff undertook to make 50,000 paper boxes to be used in the candy trade, upon which was to be impressed certain printed matter. At the time the contract was entered into, there was submitted a copy of the matter to be printed, arranged in a certain way, so that the figure “5’’ and the word “ cents” showed on the two ends of the box when folded, and, if turned around horizontally on the larger plane surface, both of these would be-upright, but, if turned around perpendicularly, one of the two-would be upside down. There was also at the same time submitted a folded cardboard of the kind of box theretofore used by defendant, which showed on the ends a figure “5” and word “ cents” so arranged that, if turned around horizontally, one would be upright and the other upside down. But the evidence does not disclose which of these two was to be followed in printing the order in question. It did in fact strictly conform to the arrangement of the copy furnished, proof of which was submitted to defendant, and approved by him. This alone would have justified the plaintiff in printing the matter as he did. Besides, in the absence of proof of any express agreement to the contrary, we think the presumption must be that it was intended by the parties that it should be printed according to the copy, and not according to the folded pasteboard, which was submitted, doubtless, merely for the purpose of showing the general arrangement of the parts. The plaintiff subsequently printed cardboards sufficient to make all or nearly all of the boxes ordered, and made up 1,500 of them, which were delivered to thedeféndant, who claimed that they were improperly printed in the respect above mentioned. He, however, did not return them, nor offer to return them. Subsequently, over 8,000 of the boxes were delivered and returned to the plaintiff, on the ground that they differed from the cardboard sample. The testimony shows that at one time the defendant claimed it was not according to the cardboard sample, and at another time not according to the copy furnished; but, as before shown, it was almost a Chinese reproduction of the copy. We, therefore, think that the court erred in finding that the boxes were not according to the copy furnished, and also that it was not according to sample, as there íb no proof that there was anything said as to the mode or manner of arranging the printed matter.

We also think the court erred, under these circumstances, in excluding the evidence as to the mode or manner in which such boxes were printed and made in the candy trade, as the plaintiff was clearly justified, in the absence of a special direction as to this matter, in following the usual mode in that trade.

As the judgment must be reversed for these errors, it is unnecessary to discuss the question as to whether or not the plaintiff was excused from a complete performance of the contract, as the evidence upon this point may be made clearer upon another trial.

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