author: Gray, J.

text:
    The People, App’lts, v. John Kief, Resp’t.

      (Court of Appeals,

      Filed May 5, 1891.)

    1. Criminal law—Conspiracy—Evidence as to acts op co-depend-ants.
    If the guilt of one of several defendants, who are jointly indicted for a felony, is sought to he established by evidence showing or tending to show a conspiracy between him and the other defendants for the commission of the felonious act, evidence as to acts or statements of the others must be confined to such as were made or done at times when the proofs in the case permit of a belief that a conspiracy existed and when therefore the acts or statements might have been in furtherance of the common design.
    2. Same.
    Whatever may have been said or done by the several persons accused of conspiring to commit the crime before the time when according to the evidence the conspiracy was formed or subseque 4 to the time when the conspiracy terminated, by the accomplishment of the common purpose or by abandonment, is inadmissible as evidence against the others.
    3. Same—Acquittal of co-defenuant.
    It js_ immaterial upon the trial of a party charged with a felony whether one jointly indicted with him for the offense has been acquitted or not.
    Appeal from judgment of the supreme court, general term, fourth department, reversing conviction and judgment of murder and ordering a new trial in the oyer and terminer of Madison county.

      E. N. Wilson and Henry M. Aylesworth, dist. att’y, for app’lts ; J. I. Sayles, for resp’t.

      Affirming 34 N. Y State Rep., 527.

   Gray, J.

The defendant John Kief was indicted with Carrie C. Howard for the premeditated killing of her husband, alleged to have been effected by administering to him arsenic upon several occasions in the month of December, 1884. The accused demanded separate trials, and Carrie Howard being first tried was acquitted by the judge. This defendant Kief, however, upon his trial was found guilty as charged in the indictment, and a judgment of conviction of murder in the first degree was rendered against him. Upon an appeal to the general term of the supreme court that judgment was reversed and a new trial ordered, because of the commission of errors of law in the course of his trial. The People have appealed to this court and endeavor to sustain the conviction at the oyer and terminer.

We quite agree, with the general term that a new trial should - be awarded to this defendant. That court has based its order mainly upon the ground of the erroneous admission of evidence as to certain statements of Carrie Howard made at times prior to October, 1884, and as to certain acts performed by her subsequent to the death of her husband, all of which may have tended, perhaps, to incriminate her, but which certainly could not be made use of in order to inculpate this defendant. He came to work regularly for the deceased sometime in October, 1884, and that was the earliest time when the evidence tends to establish the commencement of the intimacy or of any conspiracy between the two accused.

If the guilt of one of the several defendants, who are jointly indicted for a felony, is sought to be established by evidence showing, or tending to show, a conspiracy between him and the other defendants for the commission of the felonious act, evidence as to acts or statements of the others must be confined to such as were made or done at times when the proofs in the case permit of a belief that a conspiracy-existed, and when, therefore, the acts or statements might have been in furtherance of the common design. Whatever may have been said or done by the several persons accused of conspiring to commit the crime before the time when, according to the evidence, the conspiracy was formed, or subsequent to the time when the conspiracy terminated by the accomplishment of the common purpose, or by abandonment, is inadmissible as evidence against the others. 1 Greenl. Ev., § 111, and 3 id., § 94; and see People v. McQuade, 110 N. Y., 307; 18 N. Y. State Rep., 288, and authorities there referred to. We need not, I think, discuss this question, inasmuch as the opinion of the general term has sufficiently explained' the application of a rule well settled by authority.

This defendant insists that it was error to reject the record of the acquittal of Carrie C. Howard, and that view was taken by one of the learned justices at the general term. Concerning that question we need speak only briefly.

Before the enactment of § 29 of the Penal Code, where a party was indicted as accessory before the fact to a felony, for which another had been indicted as principal, the trial and conviction of the principal were essential to the prosecution of the charge against the accessory. Baron v. People, 1 Park., 246; Starin v. People, 45 N. Y., 333. The record of the conviction of the principal was, therefore, offered in evidence as a part of the People’s case upon the trial of the accessory. It was admitted simply as establishing the fact of a conviction had. Upon the question of guilt, whether of principal or of accessory, the record concluded nothing, for the defendant was not a party to it, and he was at liberty to dispute and disprove it. But with the change effected by the Penal Code, the distinction between principal and accessory disappeared, and thenceforward he who aided, abetted or counseled in the commission of a crime became equally guilty with him who committed it, and could be indicted, tried and convicted as a principal. If it is immaterial, therefore, upon the question of his guilt whether a party engaged in the commission of a felony directly committed the crime alleged, or only abetted in its commission, it must be quite immaterial whether one jointly indicted with him for the offense has been acquitted or not. The question of the one defendant’s guilt cannot turn upon the establishment of the other’s guilt; it is an independent issue to be tried out. alone. Because of the changed conditions brought about by the Penal Code provisions cited, reasoning upon the previous practice is useless. At present a defendant must go to the jury upon such competent and relevant evidence as tends to prove, his guilt, and quite irrespectively of the extrinsic and irrelevant fact that one or more defendants, jointly charged as accomplices, have been acquitted upon their separate trials.

The indictment charged the defendant with the killing of the deceased. The evidence tended to establish that there were opportunities for administering arsenic to the deceased by this defendant, as well as that he may have counseled and abetted Carrie Howard in administering it. If he administered it himself, then the record of Carrie’s acquittal was, obviously, immaterial. If he abetted her in poisoning her husband, then the Penal Code makes him as guilty as though he directly did the poisoning. How the fact that Carrie Howard had been acquitted, or convicted, could not legally prove anything for or against this defendant, for he was not a party to that record. The general principle upon which the admissibility of evidence rests is its relevancy, or its tendency to establish the issue upon trial. Carrie’s acquittal would not prove this defendant’s innocence of the charge in the indictment. At most it would only prove that, being tried first, for some reason she escaped conviction at the jury’s hands.

What the law assured to this defendant was a fair trial upon the charge contained in the indictment, and all such evidence was admissible to prove his guilt which was based upon his own acts •or statements; or upon the acts and statements of his alleged accomplice, Carrie Howard, provided that the evidence as to what she .said or did was confined to the period of time between the commencement of their intimate relations and the time when the death •of their alleged victim occurred.

The order of the general term should be affirmed.

All concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    John Franey, App’lt, v. Alvin C. Smith et al., Resp’ts.

      (Court of Appeals,

      Filed May 5, 1891.)

    Appeal—Costs to abide event.
    Where this court reverses the judgment of the court below and grants a new trial, in either an equitable or legal action, “ with costs to abide the event,” all the costs of the action up to that time are intended.
    Motion to amend remittitur.

      A. A. White, for app’lt; Arthur More, for resp’ts.
   Per Curiam.

The plaintiff upon the first trial, in an equitable action, recovered judgment against the defendants. That judgment was affirmed at the general term; but upon appeal to this court it was reversed and a new trial granted, “ costs to abide the event.” Upon the new trial the defendants succeeded and the complaint was dismissed. They now claim all the costs of the action, and the plaintiff claims that they are not entitled by virtue of our judgment to any costs, except the costs of appeal to this court. The cleric taxed the costs in conformity with the claim of the defendants. The plaintiff thereafter made a motion for re-taxation at a special term where the taxation of the cleric was affirmed, and he then appealed to the general term. In the opinion written at the special term we find the following: “It can not be questioned that the order of reversal in the court of appeals gave to the defendant only the costs in the court of appeals upon his recovering judgment upon the second trial. This the counsel for both sides concede, and the defendants’ counsel bases his right here purely upon the order of the special term upon the second trial, dismissing the complaint, with costs. The court of appeals clearly had the power to direct that the defendant, in the event of his success upon the second trial, should have the costs of the special and general terms upon the first trial. The judges of the •court of appeals had before them the record upon the first trial and in the general term. It would be most fitting that the power should rest with them and them alone. It would seem that its refusal to exercise such power should be conclusive against the defendants’ contention here.”

The defendants now make a motion to amend the remittitur of this court by inserting therein that “ the appellants have costs of the special and general terms,” or that it be amended by inserting therein, “ with costs of the special and general terms.to the appellants in case of success on a re-trial.”

This motion is wholly unnecessary. The counsel for both parties, and the judge at the special term, seem to have misapprehended the effect of our judgment. Under § 3238 of the Code this court had the power, upon the reversal of the judgment and granting a new trial, in its discretion, to provide that the costs should abide the event, or to award them absolutely to either party. Our judgment was that they should abide the event, and that formula always means in such a case all the costs of the action up to and including the decision of this court. And we have never held otherwise., In Sisters of Charity v. Kelly, 68 N. Y., 628, we held that when costs are given by the judgment of this court, it means costs in this court to the' successful party as against the unsuccessful party. There the costs in question were those awarded upon an affirmance by this court, and we held that costs in that case simply meant costs to the successful party as against the unsuccessful party. In First National Bank v. Fourth National Bank, 84 N. Y., 469, we held that where an order is made by this court on appeal from a judgment reversing the judgment, “ with costs to abide the event,” and without other limitation, the respondent, if finally successful in the action, is entitled to tax the costs of the appeal. There the defendant obtained in this court a reversal of the plaintiff’s judgment, with costs to abide the event, and upon the new trial the plaintiff was again successful, and the question was whether he was entitled to tax the costs of the appeal to this court; and we held he was. Judge Andrews, writing the opinion, said: “ We have often limited the recovery of costs on appeal to one of the parties, but where the order reverting a j udgment and granting a new trial is made with costs to abide the event, without other limitation, we "understand that the party finally succeeding in the action is entitled to tax them; ” and the judge then had in mind the costs of the action, although the only question before him was whether the party who was unsuccessful upon the appeal to this Court, but who was finally successful in the action, was entitled to costs of the appeal to this court.

In Matter of Public School, 86 N. Y., 396, there was a special proceeding to vacate an assessment fór a local improvement in the city of Hew York, and we having reversed the order of the general term and affirmed the order of the special term, “with costs,” and the successful party thereupon claiming to tax full costs of appeal to the general' term, it was held that our order carried only the costs of this court and that we had not attempted to interfere-with the costs in -the court below.

In the Matter of the Water Commissioners of Amsterdam, 104 N. Y., 677; 5 N. Y. State Rep., 744, we held that the words “ with costs,” in an order of affirmance or reversal, in this court, in a case where the allowance of costs is discretionary, meant costs in-this court only. There this court reversed an order of the general term, confirming a report and award of commissioners, and set aside the report “with costs,” and directed a rehearing before new commissioners; and we held that that formula “ with costs,” where we made the final order in reference to them, without, more, meant only the costs of appeal to this court. But where we reverse the judgment of the court below and grant a new trial, in either an equitable or legal action, “ with costs to abide the-event,” all the costs of the action up to that time are intended.

It is, therefore, wholly unnecessary to amend our remittitur, and the motion is denied, without costs to either party.

All concur.

       See 34 N. Y. State Rep., 469.


author: Ruger, Ch. J.

text:
    Edward Roberts, App’lt, v. August Baumgarten, Resp’t.1

      (Court of Appeals,

      Filed May 5, 1891.)

    Ejectment—New trial—Code Civ. Pro., §§ 1524, 1525—Waiver.
    Where a plaintiff in an ejectment action obtains judgment before the-, court without a jury upon findings of fact, but on appeal the judgment is-reversed by the general term and a new trial ordered, and the plaintiff then appeals from this Order to this court, stipulating that in case the order is affirmed judgment absolute should be rendered against him, he waives his right under the statute to have a new trial, as a matter of course, upon paying all costs and damages awarded against him by the judgment.
    Appeal from judgment of the New York superior court, general term, affirming order of special term granting a new trial as matter of right on payment of costs in an action of ejectment.

      Robert Hunter McGrath, Jr., for app’lt; Cephas Brainerd, for resp’t.
   Ruger, Ch. J.

The plaintiff, by this proceeding, seeks to-avail himself of the right to a new trial in an ejectment case, conferred by §§ 1524 and 1525 of the Code of Civil Procedure.

Those sections substantially provide, first, that, except as otherwise expressly provided, a final judgment in ejectment rendered upon the trial of an issue of fact is conclusive, as to the title established in the action, upon each party against whom it is rendered and all persons claiming through or under him. Section 1525. “ The court at any time within three years after such a judgment is rendered and the judgment roll is filed, upon the application of the party against whom it was rendered, his heir, devisee or assignee, and upon payment of all costs ” and certain specified damages, “ must make an order vacating the judgment and granting a new trial in the action.”

The circumstances under which this motion was made were as follows: On the trial of an ejectment action before the court without a jury, judgment was awarded upon findings of fact, as we assume, in favor of the plaintiff. Upon appeal, however, this judgment was reversed by the general term and a new trial ordered. The plaintiff then appealed from this order to the court of appeals, stipulating that in case the order was affirmed judgment absolute should be rendered against him. The order was affirmed in this court and judgment absolute against the plaintiff was ordered, and such judgment was duly entered in the court below in pursuance of the remittitur from this court. The plaintiff now claims that he is, by virtue of the statute referred to, entitled to a new trial, as matter of course, he having paid all costs and damages awarded against him by the judgment.

Prior to the Revised Statutes, judgments in ejectment, at common law, were not conclusive evidence of the title to the property involved, and successive actions could be maintained by a plaintiff by the adoption of fictitious allegations in his complaint varying the demise under which the plaintiff made his claim. Such actions could be restrained only by an action in equity, prohibiting the bringing of repeated actions for a cause which had been sufficiently litigated in prior actions. Equator Co. v. Hall, 106 U. S., 87.

_ The sections of the Code referred to were a substantial re-enactment of the provisions of the Revised Statutes and have continued unchanged in any respect important to notice from 1828 till the present time. The Revised Statutes made radical changes in the law governing actions relating to real estate as they had previously existed, and, among other things, provided that judgments rendered upon the trial of questions of fact in actions of ejectment should be conclusive as to the title adjudicated, upon the parties to the action and those claiming under them, except "that an unsuccessful party on such trial might have a new trial, if he chose to apply for it, upon payment of the costs and damages awarded by the judgment sought to be vacated. This exception to the general practice'was based upon the peculiar importance which the common law attached to actions involving the title to real estate and its reluctance to take land from a party in possession until after the facts upon which the claim of title was based, where they were disputed, had been passed upon by two juries or other triers of questions of fact. .

It has been decided that judgments in such actions rendered upon submitted cases, by default, consent, or upon questions of law, stand upon the same footing in respect to their conclusiveness, as adjudications, as those in actions generally. Sacia v. O’ Connor, 79 N. Y., 260; Christie v. Bloomingdale, 18 How. Pr., 12; Chautauqua Co. Bank v. White, 23 N. Y., 348.

As regulated by the Revised Statutes, therefore, a new trial could be had, as matter of course under the statute, only when the judgment sought to be opened was rendered upon questions of fact. The obvious purpose of the statute was to leave such judgments, in respect to other conditions, the same as judgments in actions generally.

The judgment sought to be vacated in this case was one which was entered in the superior court upon a remittitur from this court ordering judgment absolute in favor of the defendant. This judgment was based upon a stipulation given in pursuance of the statute by the plaintiff, agreeing that judgment absolute should be rendered against him in case the judgment appealed from should be affirmed in this court. Such a judgment is in no respect based upon a trial and determination of an issue of fact; but is founded solely upon the consent of the party making the stipulation. It did not, in any respect, depend upon the merits of the controversy as between the parties or the determination of questions of fact originally made by the trial court, but was founded upon the agreement of the parties that a certain result should follow the decision of this court upon the questions of law presented to it by the record in court. Cobb v. Hatfield, 46 N. Y., 535 ; Hiscock v. Harris, 80 id., 402.

The plaintiff had the option presented to him by the order of the general term granting a new trial, to go back and have another trial of the case, or, by stipulating that judgment absolute in the case -might follow the decision of this court, to come here and review the decision of the general term upon questions of law. The plaintiff had no right to appeal to this court except upon the condition that he would submit the whole controversy upon the result reached in this court. This subjected him to the risk of being defeated in the action by an adverse result in this court upon the special questions'submitted to it by the record,, and he must be deemed to have considered that question and deliberately consented that the'judgment ordered by this court should be final in respect to the cause of action stated in the complaint.

There can be no question but that a party has for a consideration the right to waive privileges given him by a statute and agree upon a mode of trial which shall preclude him from afterwards availing himself of rights which he might otherwise have. By giving the stipulation in question the plaintiff secured a right of review which he could not otherwise have had, and there is no reason or justice in permitting him to violate his agreement because his experiment has not turned out as he expected it would. The statute is explicit that a party cannot review in this court an order of the general term granting a new trial, except upon the condition that he shall stipulate for judgment absolute in case he-does not succeed in obtaining a reversal of the order appealed from, sub. 2, § 11, Code of Procedure, 1848; sub. 1, § 191, Code of Civil Procedure, and to hold that the party who sustains such an order in this court does not secure an absolute judgment would nullify the express provisions of the statute and deprive the stipulation of the party of any meaning or effect. These provisions of the Code are general and no exception has been made in the case of aetions of ejectment and no authority exists for omitting such actions from the operation of the rule prescribed by the Code. To hold otherwise would involve the right of the court to-disregard the express statutory provisions and establish a broad exception to the operation of a statute which was undoubtedly intended to be general and comprehensive in its requirements.

The order of the court below should, therefore, be affirmed, with costs.

All concur.

       Affirming 34 N. Y. State Rep., 586.


author: Andrews, J.

text:
    Frederick Kelver, Resp’t, v. The New York, Chicago & St. Louis R. R. Co., App’lt.

      (Court of Appeals,

      Filed May 5, 1891.)

    1. Railroads—Fences—Injury to animals—" Adjoining lands.”
    A railroad is not excused from the duty imposed by the state of fencing by the fact that cattle injured by it did not get on the defendant’s tracks from " adjoining lands,” but across the tracks of other roads lying between the farm lands and defendant’s track.
    (Following Shepard v. Buffalo, IV. T. & E. B. Co., 35 N. Y., 641.)
    3. Same—Evidence.
    Upon the trial of an action for damages through cattle straying upon the track it would be improper to admit evidence to show that fences on the sides of defendant’s road would, by reason of the narrow space between the tracks and those of the adjacent roads, constitute a dangerous obstruction and imperil the lives of passengers and operatives about the cars and npon the tracks, as this situation had been created by defendant for its own purposes and by its own volition.
    , Appeal from judgment of the superior court of Buffalo, general term, affirming judgment in favor of plaintiff.

      John G. Milburn, for app’lt; Simon Fleischmann, for resp’t.

       Affirming 35 N. Y. State Rep., 673.

   Andrews, J.

The 44th section of the- general railroad act of 1850 imposed upon every railroad company organized thereunder an absolute duty to erect and maintain fences on the sides of its road, and made the corporation liable for all injuries done by its “ agents or engines ” to cattle or other animals thereon until such fences shall have been made. This absolute duty was modified by § 8 of chap. 282 of the Laws of 1854, which was an act amending the act of 1850, and which section substantially re-enacted § 44 of the original act, but added thereto this provision: “ That no railroad corporation shall be required to fence the sides of its road, except where such fence is necessary to prevent cattle, sheep and hogs from getting on to the track of the railroad from the lands adjoining the same.”

It is conceded that the defendant has never fenced its road and that the plaintiff’s cattle were killed on the track of the defendant, on to which they had strayed, by an engine running thereon.

It appears that the defendant is one of five railroads running for a distance out of the city of Buffalo on five parallel tracks, separated from each other only so far as to permit the passage of trains on the respective roads. The defendant’s tracks occupy a central position, there being the tracks of two other roads on each side of its tracks, those on the easterly side being the tracks of the Buffalo, Rochester & Pittsburgh Railroad, and of the Western New York & Pennsylvania Railroad. The exterior tracks on the easterly side of the defendant’s tracks are those of the road first named, and the plaintiff’s cattle strayed from a farm adjoining the tracks of that road on to those tracks, thence across the tracks of the Western New York & Pennsylvania Railroad on to those of the defendant. Neither of the roads mentioned had ever erected any fences on the sides of its road. There was no barrier to prevent cattle straying from the farm where the plaintiff’s cattle were across the intervening tracks onto the tracks of the defendant. There were eight or more tracks east of those of the defendant. The Buffalo, Rochester & Pittsburgh Company had its tracks and sidings, and also an engine house, coal platforms and other structures on its lands, hut the way was otherwise open and unobstructed.

The east rail of the east track of the defendant’s road was seven feet distant from the west rail of the west track of the Western New York & Pennsylvania Railroad, and when trains are passing each other on the two tracks there is a space of only three feet between the cars.

The defendant relies upon two grounds for the reversal of the judgment:

First. That the cattle did not get on to the defendant’s tracks from lands adjoining the same," within the meaning of the statute, and
Second. That the court erred in rejecting evidence that fenc.es on the sides of the defendant’s road would by reason of the narrow space between its tracks and those of the adjacent roads constitute a dangerous obstruction and imperil the lives of passengers and of operatives employed about the cars and upon the tracks.

The first point was adjudicated against the defendant’s contention in the case of Shepard v. Buffalo, New York & Erie Railway Company, 35 N. Y., 641. In that case cattle had strayed from lands adjoining the track of the New York Central Railroad, upon and over the track of that road, and thence upon the track of the Erie road, immediately adjoining, and were there killed. Neither company had fenced its road. It was claimed that the primary duty to fence was upon the road whose tracks were next to the. land from which the cattle strayed, and that the lands of the New York Central Railroad, from which the cattle came on to the defendant’s road, being railroad lands, were not “adjoining lands ’’ to those of the defendant within the statute of 1854.

The court overruled the contention, and while conceding that the purpose of the statute would have been attained if the New York Central Company had complied on its part with the law, nevertheless held that the defendant was not thereby excused, and that, not having fenced its road, it was liable for the value of the cattle.

The multiplication of railroads, and the difficulty, especially in large cities, of securing suitable and convenient approaches and outlets, makes it often desirable, and in some cases necessary, that different converging roads should be constructed for a distance on substantially parallel routes adjacent to each other. If this condition of things had been in the mind of the legislature when the legislation in question was enacted, it is not improbable that the obligation to build fences in such cases would have been imposed exclusively upon the road occupying the exterior part of 6ho territory upon which the several roads were constructed, or have imposed a joint obligation to fence on all the roads. This would apparently have satisfied the purpose of the statute. But the statute imposes a several obligation upon every company to fence its road, with the qualification that the duty to fence does not arise where no fence is necessary to prevent cattle from reaching the track. If there is a natural or artificial barrier which bars the way, then, as there is no necessity for one, no fence is required. But the statute does not permit the company to exercise a discretion depending upon the improbability of cattle going upon the track where there is no barrier, natural or artificial, to prevent them, and under such circumstances it cannot be left to a jury to find whether the omission to fence was reasonably prudent or not. The case of Dolan v. R. R. Co., 120 N. Y., 571; 31 N. Y. State Rep., 852, proceeds upon special circumstances, and is not in conflict with the views herein expressed.

In the present case there is nothing to limit or qualify the general duty to fence, or which justified the exercise of any discretion on the part of the defendant in protecting its road from the intrusion of cattle.

The evidence to show the danger to passengers and operators from the erection of fences was, we think, properly excluded.

It is to be observed that the question is not whether a court would, in the actual situation, compel a specific performance by the defendant of its statutory duty. It may be conceded that it would refuse to enforce specifically the building of fences along the sides of the defendant’s road as now located, if it should appear that by so doing human life would be endangered. But this, we conceive, is no answer to a civil action for damages resulting from the neglect to fence.

The defendant, for its own purposes and by its own volition, has placed its tracks in such near proximity to the tracks of other roads that it cannot, as is claimed, perform its statutory duty without hazarding the safety of its passengers and others. It seeks to set up a situation which it itself has wrongfully created" as an excuse for disregarding this duty. This it cannot do. If it had appeared that the Buffalo, Rochester & Pittsburgh Railroad Company had erected and maintained a proper fence along the easterly side of its track, through or over which the cattle had nevertheless escaped on to the defendant’s tracks, a different question would be presented. The question would then arise whether the defendant might not be entitled to treat the fence of the other corporation as its fence for the purposes of the statute. But this question is not presented

Following the language of the statute, as interpreted by the decisions, we must hold that the action is maintained. It is for the legislature to change or modify the statute, if any change or modification is expedient.

The judgment should be affirmed.

All concur.


author: Finch, J.

text:
    John Townshend, App’lt, v. Caroline A. Bogert, Resp’t.

      (Court of Appeals,

      Filed May 5, 1891.)

    1. Partition—Complaint.
    A complaint in partition -which, after averring that the property is of such character and so situated as to make an actual partition impossible, except with grave injury to the interests of the owners, and, therefore, seeks a sale and division of the proceeds, alleges that certain parties, naming them, ‘ ‘ claim some right, title or interest in said premises, the exact nature of which is unknown to the plaintiff, and which is a cloud upon the title to said premises,” is not demurrable by said parties defendant, on the ground that it states no cause of action against them.
    2. Same—Parties.
    All persons who either are or claim to be interested in the premises are affected by a demand for a sale and a division of the proceeds, and the cause of action pleaded affects or concerns them and so becomes a good cause of action for a partition as against them.
    Appeal from judgment of the New York superior court, general term, -reversing. order and judgment overruling demurrer to complaint and sustaining demurrer.

      John Townshend, for app’lt; John S. Davenport, for resp’t.

       Reversing 35 N. Y. State Rep., 76.

   Finch, J.

We are of opinion that the general term erroneously sustained the demurrer interposed to the plaintiff’s complaint. That pleading, it is conceded, stated a good cause of action for a partition as against the defendants who held undivided interests in the lands as tenants in common, and none of whom object to its sufficiency. It avers that the property is of such character and so situated as to make an actual partition impossible, except with grave injury to the interests of the owners, and, therefore, seeks a sale and division of the proceeds. With 'that relief in view, it further alleges that other parties, naming them, and being those who now demur, “ claim some right, title or interest in said premises, the exact nature of which is unknown to the plaintiff, and which is a cloud upon the title to said premises,” and asks that they be adjudged to have no interest in the property.

The demurrants interpose two objections: one that the complaint states no cause of action against them, and the other that a cause of action to determine a claim against real estate is improperly united with one in partition. The demurrants themselves demonstrate that there is no force in the second objection, for they show satisfactorily that none of the conditions made necessary by the Code for the maintenance of such an action have been heeded, and that neither such cause of action nor one to remove a cloud are stated in the complaint We agree with them that neither in purpose nor result were any such causes of action pleaded, and that the complaint states alone a cause of action in partition.

The question, therefore, is whether upon the allegations of the complaint the 'right to a partition of the property can be said to affect the defendants who demur. It seems to me that it can. Prima facie, and in the absence of a contrary explanation, all persons who either are or claim, to be interested in the premises are affected by a demand for a sale and a division of the proceeds, and the cause of action pleaded affects or concerns them and so becomes a good cause of action for a partition as against them. That the complaint does not show what their interest is the plaintiffs excuse by their ignorance of the nature of the claim, and that is a fault which the defendants can easily repair. That the claim of an interest in the premises may be false or pretended or unfounded we are not to presume in order to sustain the demurrer. It is true that the interest claimed may prove to be of such a character as to be totally unaffected by tire partition sought. If that be so, it should be asserted by answer. The presumption raised by the allegations of the complaint is to the contrary, for they are that the claim is of an interest or right in the property to be sold and such that it serves to cloud the title. Presumably that is a claim of right which the' partition will affect, and the parties who have made such claim and by the demurrer admit that they have, must be assumed to have done so in good faith, and not falsely or fraudulently.

The rules of pleading in equity, while the same in form with those in actions at law, are nevertheless broader and more elastic by reason of the inherent character of the relief which may be sought and given. It has always been held as a general rule in equity that all persons materially interested, either legally or beneficially, in the subject matter of a suit are to be-made parties to it so that there may be a complete decree which shall bind them all. Caldwell v. Taggart, 4 Peters, 190.

In carrying out that rule it sometimes happens that a plaintiff knows the fact that a third person claims an interest in the subject matter of the action, but does not know the nature, extent or merits of the claim, which cannot nevertheless be entirely ignored without peril to the completeness of the remedy sought. In such an emergency the facts may be stated, the claimant be called in as a party, and required to disclose his alleged interest. While bills of discovery are abolished, yet in such a case as we have described a discovery of the defendants' claim is incidental to the relief sought and essential to its completeness. Indeed, it has been said that every bill for relief is in reality a bill of discovery, since it asks from the defendant an answer as to all the matters charged in the bill. Story’s Eq. Pleading, § 311. The Revised Statutes acted upon these principles in framing the specific rules applicable to actions of partition. 2 R. S., part 3, chap. 5, tit. 3, § 5.

The petition was required to set forth the rights and titles of all persons interested “so far as the same are known to the petitioner,” and the rule to appear and answer required the defendants interested, whether their interest was known or unknown, “to show title to the proportions which they may claim ” in the premises. Section 13.

While the Code has changed the forms of pleading it has not destroyed their essential characteristics except in some minor degree. In providing for actions of partition, § 1542 was ostensibly founded 5 of the Revised Statutes, and like that section requires the rights of the parties to be stated “so far as they are known to the plaintiffs.” So far as they are not known such interest can only be described as “a claim,” for it will not do to say that the plaintiff must admit the validity of an asserted interest the nature of which he does not know.

This complaint, therefore, alleged all that it could to show why the demurrants were made parties, and how the cause of action concerned them. The relief of a' sale could only be complete and effective by the ability to give a clear title. Bogardus v. Parker, 7 How. Pr., 305. That result could only be reached by bringing the claimants into court and calling upon them to disclose their interest or disclaim its existence, and so the allegations of the complaint were sufficient prima facie to extend the one cause of action to the demurrants and bring them within its influence. They are either so situated as to be affected by the decree or not affected by it. Presumably from the averments of the complaint they will be affected by it. If, however, they insist that their interest may be of such a ^character that it will not be affected by a possible sale of the property, or that it cannot or ought not to be tried in the suit, it is enough to say that the plaintiff cannot negative in his complaint a character of their claim of which he asserts his ignorance.

If either of those conditions exist the remedy is not by a demurrer. If the actual partition or sale will not affect or disturb the rights of the party he may safely disregard the action entirely since no personal judgment is sought against anybody; or he may answer showing that his presence is unessential and ask to have the complaint dismissed as to him. If his interest is of a nature not subject to a trial in the partition suit he may pléad the facts in his answer and again seek a dismissal of the complaint as against himself. And so his rights may be perfectly preserved without leaving the plaintiff to blunder in the dark to an imperfect remedy.

It may be that the complaint asks some relief which cannot be granted, but that does not make the complaint demurrable.

The judgment of the general term should be reversed, and that of the special term affirmed, with leave to the defendants to answer upon payment of costs from the interposition of the demurrer and within twenty days after notice of the entry of this judgment upon filing the remittitur.

All concur.


text:
    William Ziegler, Resp’t, v. Alfred C. Chapin et al., App’lts.

      (Court of Appeals,

      Filed May 5, 1891.)

    Municipal corporations—Eminent domain—Laws 1886, chap. 835.
    By chap, 335, Laws 1886, the city of Brooklyn was authorized to acquire the rights of a water company in New Lots by purchase, “ when ” a price was agreed upon, and if an agreement could not be made, then such rights could be acquired by the right of eminent domain within two years, to be held subject to certain mortgages.- No proceedings were taken within the said two years, but thereafter an agreement for the purchase of such rights was entered into. Plaintiff brought action against the municipal authorities to restrain them from purchasing such property, alleging that it was beyond their authority and wholly illegal and void. Held, that the authority to purchase expired with the limitation of two years, during which the city had the right to take title by eminent domain.
    Appeal from a judgment of the supreme court, general term, second department, affirming order restraining defendants, as officers of the city of Brooklyn, from purchasing the property and franchises of the Long Island Water Supply Company for the city of Brooklyn for $1,250,000.

      Geo. F. Danforth, Almet F. Jenks, Wm. C. De Witt and Thos. E. Pearsall, for app’lts; Wm. J. Gaynor, for resp’t.

       Affirming 37 N. Y. State Rep., 185.

   Finch, J.

It is conceded that we cannot review the order of the special term which restrains the defendant officials from purchasing the property and franchises of the Long Island Water Supply Company if the complaint states a good cause of action. The suit is brought by a taxpayer of the city of Brooklyn to prevent such purchase, as being illegal and unauthorized and amounting to a waste of the property and funds of the city, and it was a proper and reasonable exercise of discretion on the part of the court to restrain the purchase pending the litigation in aid of the plaintiffs’ remedy, unless we are able to see on an examination of the complaint that he is clearly and certainly not entitled to the ultimate relief which he seeks. The appeal comes to us dependent upon that proposition, and with a frank acknowledgment that the appellants can only succeed by satisfying us that the plaintiff has suffered no actionable wrong and is entitled to no equitable relief.

In so far as the complaint is founded upon allegations of waste, the appellants appear to be right in their assertion that no cause of action is pleaded; for, while the complaint alleges the meditated payment of an extravagant price, and states facts which are claimed to indicate a want of prudence and good judgment on the part of the mayor and his associates, yet those facts and the inferences claimed are not beyond the possibility of explanation and criticism, and the complaint contains no averment of fraud or collusion or bad faith on the part of the purchasing officials. We have quite recently declined to become arbitrators between taxpayers and their municipal officers in every instance of disagreeing opinions or conflicting judgments, and have decided that, jurisdiction in the officials existing, the courts can interfere in actions like that before us only where some fraud or collusion or bad faith is alleged and proved. Talcot v. Buffalo, 125 N. Y., 280; 34 N. Y. State Rep., 871.

It is said, however, on behalf of the plaintiff that the complaint does contain allegations of fraud on the part of the Water Supply Company; averments that it induced the defendant officials to contract for the purchase by false representations, known to be such, and made with intent to deceive, as to the revenues of the company and the earnings and value of the stock. But the action authorized by § 1925 of the Code is one which the taxpayer may bring against the public officer because of some fraud or bad faith on his part, or to restrain some illegal action. It was not intended as a mode of putting an incapable or confiding official under the protecting guardianship of the court and of making him a ward in chancery to be shielded from the effects of his own folly, nor to enable a taxpayer to try a question of fraud between the officer and those who are dealing with him. If the officer is honest and faithful no suit against him is needed. The taxpayer may explain to him the facts and discover to him the fraud and the courts are open for his protection and the means of redress are at hand. It is only when in the face of explanation and knowledge he still refuses to act and persists in carrying out the wasteful contract that an action against him is needed ; and then it rests upon his misconduct, upon his collusion and fraud, which must be alleged and proved. The'legislature could not have intended that the courts should supply intelligence and prudence to incapable officials at the demand of a taxpayer, but manifestly did intend to give the latter protection against the dishonesty or fraud of the municipal agents.

The action, therefore, can only be maintained, if at all, upon the further ground that the contemplated purchase by the mayor and his associates is beyond their authority and wholly illegal and void. The complaint contains that averment. There is no disagreement as to the source of the authority to purchase if any has been granted, and it is claimed to exist in the terms of the annexation act which merged the town of New Lots in the city of Brooklyn, Laws of 1886, chap. 335. Section 5 of that act reads thus: “ The mayor, comptroller and auditor of the city of Brooklyn are hereby authorized for and in the name of the city of Brooklyn to purchase the reservoir, well, machinery, pipes, franchises and all other property of said company when and at such price as may be agreed upon by said officers and by the said company by its board of directors, who are hereby authorized to sell and convey the same to said city, and in case said parties shall be unable to agree upon a price for the purchase and sale of the said property then in that case the power to acquire said property and franchises by the right of eminent domain is hereby expressly delegated to said city of Brooklyn, and the said officers in the name of and for said city within two years hereafter may proceed to acquire and may acquire all such property by proceedings such as are required for the acquiring of additional land for railway purposes by corporations formed under the provisions of chapter one hundred and forty of the laws of eighteen hundred and fifty. And all such property, when thus purchased and acquired, shall thereupon become and be a part of the water supply property of the said city, but it shall be held subject to two mortgages now on said property, each made to secure the sum of two hundred and fifty thousand dollars and interest.”

I have quoted the section at length in order that we may better judge between the two opposing constructions which have been presented for our consideration. As often happens, one clings to the precise letter of the enactment, while the other seeks to evolve its real spirit and meaning; the study of one ends at a single uncompromising word, while that of the other pervades the whole section and calls to its aid the light furnished by the surrounding circumstances. The defendants claim that it confers a general and unlimited authority to purchase the property of the Water Supply Company “when” an agreement with that company can be made and at any time in the future; and the plaintiff insists that the act ■contemplated an effort to agree with reasonable promptness, and one which, if unsuccessful, could be followed by the permitted proceedings under the law of eminent domain, and that the authority did not and could not outrun the two years allowed for those proceedings. The latter is the interpretation of the general term. Some reference to the situation of the respective parties at the date of the enactment will aid in appreciating its provisions and in ascertaining its meaning.

The city had its own system of water works, with ample power to extend them into the annexed district, and the right of eminent •domain for the purpose of taking land or extinguishing water rights which it appears to have obtained in 1857, when it was vested with the right to absorb the Nassau Water Company. That •company was incorporated in 1855 (chap. 333) for the purpose of supplying the “consolidated city of Brooklyn ” with pure water. It had a capital stock of $3,000,000, for nearly one-half of which the city was authorized to subscribe, and was vested with the right of eminent domain.

The charter further authorized the city at any time within twenty years to take and hold the entire capital'stock, paying therefor the amount actually paid in, with twenty per cent premium.

In 1857 (Chap. 22) the mode of acquisition was changed. The stockholders of the Nassau Company, upon filing their consents to take for their stock par and seven per cent from the date of issue, were authorized to sell and the city to buy; the directors of the company were thereupon made water commissioners of the city, and the right of eminent domain possessed by the corporation was transferred to the city. In 1859 (chap. 396) that right was explicitly given, and the extension of mains and construction •of new work authorized, and the revision of 1888 repeats the provisions. Under one or more of these acts, the city stood at the date of the annexation of New Lots empowered to extend its mains through the annexed district, and armed with authority to •condemn the land or water rights rendered necessary by the extension. If, at that time, it had already absorbed the'Nassau Water Company, it did so under acts which fixed the price to be paid, and left no opportunity for extravagance or waste. But at the •date of the annexation act the town of New Lots was occupied by the Long Island Water Supply Company, which had been incorporated under the general act of 1873 (chap. 737), at a later period amended by the act of 1881 (chap. 213). Under these laws permission has been granted to the company to supply the town with water, and it had entered upon the work and was engaged in its performance. The proposal to annex the town of New Lots to Brooklyn had in it elements of danger to the Water Supply Co. If the city should parallel the existing mains and furnish its own supply, the company might easily be ruined, and it was natural that the interest thus threatened should seek some measure of protection in the annexation act itself. It is not surprising, therefore, to find in that act provisions framed to meet the emergency. The plan adopted was to authorize a purchase by the city of the plant of the company and shut off the city’s competition if it refused to buy. The earlier projects of similar character were, as we have seen, conditioned upon a fixed price, but in this instance a result deemed fair to both parties was effected in a different manner. The city was given an option to purchase at a price agreed upon, or upon failure to agree, at a price to be fixed by commissioners of appraisal. But the city might decline to buy or tof condemn, and to meet that emergency § 4 of the act provided that the city should not extend its mains into the annexed district during the life of the company, unless the option to purchase should be exercised.

The plan formulated by the annexation act thus accomplished two things: it protected the city if it chose to purchase, by giving it the power to condemn the company’s franchise as well as its tangible property, which, under the previous acts, it could not have done, Matter of Rochester Water Com’rs, 66 N. Y., 418; and if the city chose not to buy, the act protected the company by excluding, during its charter life, the municipal competition. The law put neither party at the mercy of the other, but equally guarded the rights of both. It said to the city, in substance, buy out this company with the right to condemn its franchise if it asks an unfair price, or else let it alone for its corporate life, freed from your ruinous rivalry.

I think that is the fair and just interpretation of the statute. It framed a special provision to meet a special emergency. It was for the city an enabling act of which it could avail itself only according to the conditions imposed and in the manner provided. A construction which leaves the authority to purchase operative upon the expiration of the two years, and when the power to condemn has ceased to exist, and when by the city’s neglect to act the value of the company’s franchise has been gravely increased, and so puts the negotiation wholly at the mercy of the vendors, is repugnant to the purpose of fairness and equality which the statute evidently labored to secure.

But it is said that its words are imperative and not to be changed or disregarded; |hat there is authority granted to buy “when” a price is agreed on, and so whether within or without the two years. With all due respect to the potency of the adverb, we must not fail to observe that it is “ when ” and not “ whenever.”' It respects a point of time in the progress of a single negotiation and not in the events of an unlimited future. It contemplates a possible agreement as to price in the course of the one authorized negotiation, of the one permitted effort to buy, and “when” that occurs the authority to purchase arises. But if the single negotiation contemplated ends in a disagreement, then the statute declares, “'then in that case” the city may condemn, "but must exercise the right within two years or not at all. The only negotiation authorized is one which may so end in a disagreement as to permit of a condemnation; may so end that “ then in that case ” the right of eminent domain may be employed, and no other or broader authority is given or contemplated. It is not an authority which is general and unlimited, but one which is special and particular; it is not a rule of action under all circumstances, but one to meet and fit a present and specified emergency; it is an option which, if unexercised within the designated limits and prescribed manner, is lost forever and does not survive; it is an authority for one negotiation which must culminate in agreement or disagreement in such time as to permit the ulterior and consequent power to operate; it is a right only to be exercised while the vendor is under the shadow and restraint of the law of eminent domain. Thus understood, the adverb “ when ” has its due allowance of force and meaning and is neither superfluous nor independent of its surroundings.

And so, while we freely acknowledge that the question admits of honest differences of opinion, we deem the construction of the general term the correct and accurate interpretation of the statute.

The order should be affirmed, with costs.

All concur.


author: Daly, Ch. J.

text:
    Margaret E. Niebuhr, App’lt, v. John Schreyer, Resp’t.

      (New York Common Pleas, General Term,

      Filed April 6, 1891.)

    1. Usury—What will not constitute.
    The defendant agreed to advance certain moneys to plaintiff for a joint speculation in real estate, and that on the sale of certain property he should receive his loan, with interest, and also one-third of the profits on the sale. It did not appear that the profit was to be paid to the defendant for the loan or forbearance of his advances. Held, that the agreement was not usurious.
    '2. Accounting—What will support action for.
    Where it appeared that the parties were not partners, but had a joint interest in the matter, Held, than an action for an accounting could be maintained.
    S. Trial—Variance between pleading and proof.
    Where there is a variance between a pleading and the proof, the objection must be raised on the trial; if this is not done it is not available on appeal.
    Appeal from a final, and also from portions of an interlocutory judgment in an action for an accounting.

      M. Mitchell Tyng (T. M. Tyng, of counsel), for app’lt; A. Oldrin Salter (Alex. Thain, of counsel), for resp’t.
   Daly, Ch. J.

This is an appeal from a final and also from an interlocutory judgment in an action brought for an accounting of a co-partnership alleged to have been entered into between the parties prior to November, 1883, for the purchase of lots and -erection of buildings thereon in the city of New York, the defendant to advance all the money needed for such purchase and building, and to be entitled to re-payment of the same, with interest and one-third of the profits.

The property acquired by the co-partnership was averred to be five lots on Forty-fifth street, three lots on Tenth avenue, one lot on Ninth avenue, and three lots on Bank street, on which buildings were erected, and it was alleged that defendant had sold the first eight lots. mentioned, and had received the purchase price therefor, which exceeded his advances and his proportion of the profits.

In the original complaint it was also claimed that the premises 424 West Fortieth street were also purchased and built upon under said co-partnership agreement, but by the amendment this allegation was struck out, and. it was alleged that those premises belonged solely to the plaintiff, and that the defendant had received the whole proceeds of the sale thereof in part payment of his co-partnership advances, and the plaintiff claimed a credit therefor.

The answer of the defendant denied the; co-partnership and the other allegations of the complaint connected therewith, and set up as the actual arrangement that he had agreed with the plaintiff’s husband that the latter should purchase the five lots on Forty-fifth street and the three lots on Tenth avenue and erect buildings thereon, for which purpose the defendant was to advance the necessary moneys which were to be returned to him when the property was sold, with interest, and that he was to superintend the carpenter work of the buildings and receive for his services one-third of the net profits; that be had advanced upwards of $80,000 and had been repaid only $60,000 and had received no part of the profits, which were $8,000; that the only connection Mrs. Niebuhr, the plaintiff, had with the transaction. was that the title to the lots was taken in her name by the direction of her husband.

As to the premises 424 West Fortieth street, the answer set up that neither the plaintiff nor her husband had any interest therein, but that they were at one time conveyed by the defendant as executor of his deceased wife to the plaintiff, for the purpose of having a mortgage executed thereon, and thereafter they were re-conveyed by her to him, acting as executor aforesaid. As to the lots on Ninth avenue and Bank street, the answer alleged that they were at all times the defendant’s property and denied that, plaintiff or her husband evér had any interest therein.

A counterclaim was set up arising, as alleged, upon the plaintiff’s taking part of the funds of the joint enterprise and investing them in premises oh Ninety-third street,and asking that the property be decreed liable for his advances and profits, and that he should be decreed owner thereof to an amount sufficient to satisfy his claim. It was' also alleged that an accounting had been had between plaintiff and defendant in which it was agreed that by reason of the aforesaid transactions there was justly due the defendant $28,000. The plaintiff, by reply, denied the counterclaim and averred that she became the owner of the Ninety-third street premises by taking the same in exchange for premises in Forty-third street in which neither the plantiff nor her husband had any interest, and denied the allegation of an accounting, but averred that an arbitration was had between the defendant and herself whereby it was shown that $28,599.80 was due her from the defendant as her share of the profits on the sale of the first eight lote aforesaid.

' The issues were referred to a referee, who made a report upon which an interlocutory judgment was entered, and who then took and stated the accounts of the parties and made a report, upon which the final judgment was entered. The findings upon the interlocutory judgment were substantially: First, that there was no copartnership between the plaintiff and the defendant, but that her husband at first made an agreement with the defendant by which the latter was to advance means to excavate the five lots on Forty-fifth street, and was to receive his advances and interest and $500 per lot, and that he did make advances of $7,500 therefor; that afterwards her husband, as her attorney, made a further agreement with defendant, by which the latter was to advance, in addition, the money needed to erect buildings on said five lots, and upon the sale thereof to be repaid his advances with interest, and that he should receive one-third of the profits; that a subsequent like agreement was made between the plaintiff and defendant with respect to the three lots on Tenth avenue; that on November -23, 1883, the plaintiff executed a writing to the defendant declaring that she held the title to said property, subject to the repayment of defendant’s advances and the payment of one-third of the profits; that plaintiff had no real interest in the premises 424 West Fortieth street, but received the deed thereof from the defendant as executor, and at his request and for the sole purpose of executing a "mortgage thereon negotiated by him, and that she immediately conveyed the property to him by a deed not recorded; and that she subsequently conveyed the property to a third party, to whom defendant had sold it, and that she had no interest in or right to the money realized on such mortgage or sale; also, that the plaintiff had no interest in the property on Ninth avenue or Bank street; and, as conclusion of law, that the plaintiff and defendant had a joint interest in the Forty-fifth street and Tenth avenue properties not amounting to a copartnership, which entitled the plaintiff to maintain the action. The disposition of the counterclaim was reserved for the accounting.

Upon the final accounting, the referee found that the defendant had advanced and was entitled to credit for $65,014.36, which embraced interest to January, 1885, and that he was entitled to $8,00.0 as his share of the profits, and to $819.11 on his counterclaim, amounting altogether to $73,833.47, and that he had received of the proceeds of the sale of the eight lots first mentioned, $73,627, including interest, which left due him on January 1, 1885, $206.47, and for this sum, with interest, judgment was entered in his favor. «

The questions raised by the appeal of the plaintiff are, first, that the ■ defendant ought not to be allowed $8,000 as the share of profits; second, nor $819.11 upon his counterclaim; third, and that the plaintiff should have been allowed $14,000, received by the defendant as proceeds of the premises 424 West Fortieth street.

Rone of the evidence taken before the referee is printed in the case, and the appellant relies for a reversal upon the ground that the findings of fact are insufficient and inconsistent with each other and do not sustain the conclusions of law and the judgment.

As to the profits: Plaintiff contends that the referee found that there was no copartnership between the parties; that the defendant was merely a loaner and the plaintiff a borrower of moneys, and, therefore, that the stipulation for one-third of the profits was a bonus in excess of the lawful interest and was usurious and void. This is not a correct statement of the findings. The referee found that an agreement was entered into for advances by defendant, and that on the sale of the house he should be repaid with interest and should be entitled to receive in addition thereto one-third of the profits that should be realized on such sale; but there was no finding that this profit was to be paid for the loan and forbearance of the money advanced.

The plaintiff made no request for any such finding. She requested the referee to find, and he did find, “that the relationship existing between the plaintiff and defendant, in respect to the premises in West Forty-fifth street and Tenth avenue, mentioned in the pleadings, was that shown by the paper writing signed by the plaintiff, dated Rovember, 23, 1883, which writing was read in evidence on the trial of this action as defendant’s exhibit Ro. 1.” But this paper is not in the record. The referee, in his conclusion of law, states that the plaintiff and defendant had a joint interest in the Forty-fifth street and Tenth avenue property, not amounting to a copartnership, sufficient to entitle the plaintiff to maintain the action for an accounting, and the plaintiff herself entered the interlocutory judgment upon his findings, adjudging that the plaintiff had such a joint interest in the premises. We must assume, in the absence of all the evidence, if indeed plaintiff is not concluded by her own judgment, that there was evidence of a joint interest of the parties and a lawful consideration for the agreement found by the referee that the defendant was to receive a share of the profits as well as the repayment of his advances and interest.

As to the counterclaim: The objection made by plaintiff is that the counterclaim as found was different from that pleaded. The pleading was substantially that the plaintiff had taken part of the joint funds and invested them in property on Rinety-third street, which property should be applied to the payment of the balance of his advances. The plaintiff’s reply was that said property was acquired by the exchange of property on Forty-third street known as the Rarragansett Flat, which was purchased out of her own funds and was her private estate, and no money was ever advanced by defendant in connection therewith. The finding of the referee is that the defendant advanced $3.527.64 to be devoted to the Rarragansett Flat, upon the agreement that he should have a lien thereon for the repayment thereof, with interest, and that he subsequently consented to the exchange by the plaintiff of such flat for the property on Ninety-third street upon an agreement that he should have a lien on the latter property for such repayment, and that he has received on account of his advances, with interest, $2,189.14, which, deducted from $3,527.04, and interest, leaves a balance due him of $819.11, which, as the referee finds, was the counterclaim referred to and intended to be alleged and set up in the defendant’s answer.

There is a variance between the pleading and the proof in this matter, in this respect, that the proof shows that the advances made by the defendant were from his own funds, while the pleading is that the plaintiff took the joint funds to acquire the property, and that, instead of the plaintiff’s acquiring the Ninety-third street property by moneys taken from the joint fund, she acquired it by exchanging for the Narragansett Flat, upon which defendant had made the advances. The defendant established, however, a right to a lien upon the Ninety-third street property, and this was the only substantial issue between the parties. The only way in which the plaintiff could take advantage of this variance between the pleading and the proof was by objection at the trial, but as the record of the trial is not before -us, it does not appear that such objection was made, and there is, therefore, nothing to review. Objection of variance between the pleading and proof is not available upon appeal unless raised at the trial. See Tallman v. Earle, 37 N. Y. State Rep., 271, and cases cited therein.

As to the property 424 West Fortieth street: This claim of the plaintiff is wholly without merit. It rests upon the assumption that because the defendant, in violation of his duty as trustee, conveyed the premises in question, a part of the trust estate, to the plaintiff for the sole purpose, as she knew, to enable him to raise money by mortgage thereon, and subsequently effected a sale thereof to a purchaser to whom the plaintiff, at his request, conveyed it, the defendant receiving the proceeds of the mortgage in the first place, and of the sale in the second place; that this transaction gave the plaintiff, the agent, or intermediary, by whom these negotiations were effected, the right in a court of equity to the application of such proceeds to the satisfaction of her private and personal indebtedness to the defendant arising out of matters wholly unconnected with the transaction or the trust. It does not require any argument to dispose of such a pretension. It is claimed, however, that as the defendant, as executor, pretending to act under a power of sale, made a conveyance to the plaintiff, that he cannot dispute the validity of his deed or the plaintiff’s title thereunder. No such dispute is attempted, for it appears that, upon his executing such deed to the plaintiff, she immediately re-conveyed the property back to him by a deed which he continued to hold when she made the mortgage, and also when she subsequently conveyed the property to a third person named by him. He is, therefore, not disputing his deed, but she is attacking her own.

It does not appear that any objection was made to the proof of the facts as found by the referee. We are to assume that the evidence was ample to sustain the finding of fact, and it appearing from the whole of the findings that there was a conveyance to the plaintiff by the defendant solely to enable her to make a mortgage, that she immediately re-conveyed to the defendant before such mortgage was given, and that her subsequent deed to the purchaser was, as between herself and the defendant, no conveyance of any interest, right or title whatever, it follows that she parted with nothing, and is entitled to nothing as credit on account thereof.

All other exceptions of the plaintiff relied upon on this appeal are disposed of by the foregoing considerations, and do not call for a reversal of the judgment. There is nothing inconsistent "with the findings, and they abundantly support the judgment rendered, which must be affirmed.

Bisciioff and Pryor, JJ., concur.


author: Pryor, J.

text:
    Edward B. Gibson, Resp’t, v. Patrick Donnelly, App’lt.

      (New York Common Pleas, General Term,

      Filed April 6, 1891.)

    Pleading—Counterclaim—Acquiescence in change oe place oe delivery.
    In an action to recover for milk sold and delivered, a counterclaim was interposed that the milk was delivered at a place other than that specified hy the contract. It was shown that the defendant never objected to this and that for a long period he received the milk at the substituted locality without objection. Held, that defendant must be deemed to have acquiesced in the change and that his counterclaim was untenable.
    Appeal'from judgment of the general term of the city court, affirming a judgment on a verdict, and from an order affirming an order denying a new trial. Action to recover the agreed price of milk sold and delivered. The defense was of affirmative matter presented as four several counterclaims.

      D. Edgar Anthony, for app’lt; Charles C. Burlingham, for resp’t.
   Pryor, J.

In respect of cormterclaims three and four, it suffices to say that, since it is not apparent that the case contains all the evidence, we are precluded from the inquiry whether the proof was sufficient to sustain the verdict Upon the evidence as given, however, the determination of the jury is not without adequate support.

The first two counterclaims were rejected by the court as being invalid in point of law; and whether this ruling be tenable is the only question before us.

These counterclaims stood upon a common ground, namely, that the plaintiff had contracted to deliver at a certain place; that, instead, he delivered at another place; and that by consequence the defendant sustained loss and expense. But the defendant never objected to this implied modification of the agreement; on the contrary, without a murmur, he continued daily to receive the milk at the substituted locality for a period of five months, and even renewed the contract for another year with a silent acquiescence in its changed conditions. The court below rightly held the appellant to an implied assent to a modification of the agreement. His contention that the change in the contract is invalid for want of consideration is plainly untenable. Tallman v. Earle, 37 N. Y. State Rep., 271.

Judgment affirmed, with costs.

Daly, Oh. J., and Bischoff, J., concur.


author: Bischoff, J.

text:
    Harriet A. Brady et al., Ex’rs, Resp’ts, v. Patrick Cassidy et al., App’lts.

      (New York Common Pleas, General Term,

      Filed April 6, 1891.)

    ■1. Pleading—Amended complaint.
    It is within the discretion of the court to allow service of an amended complaint although its effect be to increase the amount demanded originally.
    2. Same—Terms upon which amendment is granted.
    An appeal in a case was decided by the court of appeals in 1887 in favor of defendants, and in 1888, upon a second trial, the complaint was held defective, and plaintiff was allowed to amend on payment of $300 costs. Held, that as a condition of such amendment, in addition to the above penalty, the plaintiffs must stipulate that in case of a recovery they would waive the costs of all former trials and appeals. '
    Appeal from an order made at special term allowing the plaintiffs to serve an amended complaint

      Henry A. Forster, for resp’ts; Otto Horwitz, for app’lts.
   Bischoff, J.

Plaintiffs, as the executrix, etc., of Alfred Brady, deceased, brought this action against the defendants to recover upwards of $11,000 for a stock of plumber’s castings alleged to have been sold by plaintiffs to defendants. The action was commenced in August, 1883, and first tried in 1885, and the judgment then recovered by plaintiffs was reversed by the court of appeals for errors in the rulings of the trial justice. The reversal occurred in January, 1887, and in March, 1888, the cause was again reached for trial. On thé second trial the justice intimated that plaintiffs had failed to prove the cause of action set forth in the complaint, and permitted counsel to withdraw a juror to enable him to apply at special term for leave to serve an amended complaint. Such application was made, and plaintiffs were required, as a condition to the granting of leave to serve the amended complaint, to pay the costs of the action, not exceeding the sum of $300.

From the order granting such leave the defendants have appealed, urging substantially three grounds for its reversal: First, that the order should have been denied altogether; second, that plaintiffs should not have been permitted to increase the amount of the demand in the original complaint; and third, that severer terms should have been imposed upon plaintiffs.

The only change contemplated by the amended complaint is to permit plaintiffs to demand recovery for merchandise actually delivered under the contract of sale entered into by and between the parties, instead of a recovery for the sum agreed to be paid by the defendants upon full and complete "performance of the contract of sale by the plaintiffs, and it was therefore within the discretion of the court at special term to grant the application for leave to serve it, Hatch v. The Central National Bank, 78 N. Y., 487 ; Eighmie v. Taylor, 39 Hun, 366; Beck v. Allison, 56 N. Y., 366, 373; Code of Civil Procedure, § 723; Rumsey’s Practice, vol. 1, p. 284, § 2, and it is no objection to the granting of leave to serve an amended complaint that the sum originally demanded is thereby increased. Reed v. The Mayor, etc., 97 N. Y., 620.

The order appealed from thus appearing to be discretionary, we ought not to interfere unless the discretion appears to have been abused by an unjust disregard of defendant’s rights. After a careful examination of all the papers and testimony presented on this appeal, we cannot say that such an abuse has been shown to exist. The great delay which plaintiffs permitted to intervene between the decision of the court of appeals and the application for leave to serve an amended complaint, and the fact that plaintiffs proceeded with a second trial upon the original complaint are circumstances which should have been considered by the court in concluding to grant the relief asked for. That these circumstances were properly considered is shown, by the imposition upon plaintiffs of all the costs of this action, not exceeding $300, certainly terms much severer than those ordinarily imposed.

We think that as a further penalty, and because the former proceedings were necessarily futile because of plaintiffs’ defective pleading, they should also have been required to stipulate that in the event of plaintiffs’ successful issue in this action they will not tax the costs of the former trials and appeals had herein, but we cannot agree with the contention of the able counsel for defendants that, because the defendants have already been subjected to great expense in resisting the claim in suit, the plaintiffs should be required to reimburse them to an extent greater than the payment of the costs imposed.

Plaintiffs are prosecuting this action in a fiduciary capacity and their good faith is not in any way impugned. The estate which they represent has for more than eight years been deprived of all compensation for the merchandise actually delivered to defendants and they also have been subjected to much vexation and expense in their efforts to recover. These circumstances appeal as much to the leniency of the court as the suffering of considerable expense by the defendants in resisting every part of the claim in suit call upon it to impose upon the plaintiffs as a condition to the granting of the relief terms far in excess of those usually imposed upon like applications.

The order appealed from should be modified so as to require plaintiffs to stipulate that they will waive all costs of the former trials and appeals herein in the event of a recovery against the defendants, and as modified the order should be affirmed, but without costs to either party.

Allen and Pryor, JJ., concur.


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    Louis Rossi, Resp’t, v. Thomas Mackellar et al., App’lts.

      (New York Common Pleas, General Term,

      Filed April 6, 1891.)

    Mechanic’s lien—Laws 1885, chap. 342.
    Where a mechanics’ lien is claimed under chap. 342, Laws of 1885, against the owner of land it must appear affirmatively that the services, etc., were performed at the request of said owner or his agent, or that' the owner, or some person contracting with him for the work, or a person acting under or at the request of the person so contracting with the owner, consented to the performance of such services or the furnishing of such materials; otherwise the owner cannot he charged.
    Appeal from judgment of foreclosure and sale in an action to foreclose a mecanic’s lien against contractor and owner, filed under the provisions of chap. 342, Laws of 1885.

      J. F. Harrison, for resp’t; George M. Mackellar, for app’lts.
   Bischoff, J.

Where a lien for unpaid services or materials is claimed against the interest of the owner upon whose land the improvements were made, it must affirmatively appear either that such services were performed or that such materials were furnished at the request of the owner or his agent, or that the owner or some person contracting with him for the making of the improvements, or a person acting under or at the request of the person so contracting with the owner, consented to the performance of such services or the furnishing of such materials, and in the absence of such a request or consent the interest of the owner of the land is not chargeable. Chap. 342, Laws of 1885, § 1; Nellis v. Bellinger, 6 Hun, 560, approved in Otis v. Dodd, 90 N. Y., 336, and in Schmalz v. Mead, and Wood v. Mead, decided by the court of appeals, January 13, 1891; 34 N. Y. State Rep., 779.

From the decision of the learned trial justice upon which the judgment appealed from was entered, it appears that the defendant Mackellar was the owner of certain lands situate on the corner of One Hundred and Seventh street and Fourth avenue, which he had agreed to sell to the defendant, Susan M. Sharkey, and that pending the performance of the executory agreement of sale she was let into possession, but it does not appear that such possession was accorded to enable her to undertake the improvements. The decision is silent as to any request of or consent by Mackellar, and omits to state that Mackellar contracted with any person for the erection of the buildings in and about which the plaintiff’s services were performed. The facts found were, therefore, wholly insufficient to support the conclusion that the land was chargeable with the amount found due the plaintiff from the defendant, Susan M. Sharkey.

For the purpose of upholding a judgment the appellate court may, in the absence of an express finding of a fact material to the recovery, presume that such fact was found and duly considered by the trial court, Meyer v. Lathrop, 73 N. Y., 315, but this presumption can only be indulged in when the case discloses sufficient evidence to warrant such a finding, Oberlander v. Spiess, 45 N. Y., 175, and if none of the evidence appears in the case it may be presumed to have been sufficient. Phillip v. Gallant, 62 N. Y., 256, 265. An examination of the evidence, so far as it has been presented to us upon this appeal, reveals its total insufficiency to support a finding that the defendant Mackellar or his agent or any person contracting with him for the erection of the buildings or any person acting under the person so contracting with the defendant Mackellar consented to the performance of plaintiff’s services. And the stipulation in the case that the omitted testimony relates only to the matters embraced within the first, second, third, fifth and seventh findings of fact, and the first and. fifth conclusions of law, neither of which are excepted to, precludes us from saying that there may have been sufficient testimony upon the trial to have authorized the finding of the request or consent requisite to the validity of plaintiff’s lien.

The j udgment appealed from must be reversed and a new trial ordered, with costs to abide the event.

Daly, Ch. J., and Pryor, J., concur.


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    Isaac A. Hopper, App’lt, v. Robert Fulton Cutting et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed April 6, 1891.)

    Contract—Substantial performance by a builder.
    Where plaintiff, a builder, sought to recover upon a contract to erect a building and the defendant alleged a failure to perform which was slight ' compared with the amount of the whole contract and the alleged change was attiibuted by plaintiff to directions from the architect, Held, that it was error to non-suii; that it was for the jury to say whether the omission was wilful and whether the contract had been substantially performed.
    Appeal from judgment, entered upon dismissal of complaint.

      Philip Carpenter, for app’lt; Stephen P. Pash, for resp’ts.
   Daly, Ch. J.

This is an appeal from a judgment dismissing the complaint The action was to recover an unpaid balance of $2,160 upon a building contract, amounting'altogether to $53,-729 15. The defense was that the work was not done to the satisfaction of the architect in three particulars: namely, the roof, the cellar and the sidewalk. The complaint was dismissed on the ground that the plaintiff had failed to show substantial performance, not having shown that the work was done to the satisfaction of the architect, and not having procured the latter’s certificate, as required by the contract.

It appeared from the testimony of the plaintiff that the architect offered to give him the certificate if he would fix the cellar floor at an expense of $300. This was corroborated by the testimony of the architect himself, who was called by the plaintiff. The plaintiff had, therefore, proved that the work was done to the satisfaction of the architect in all respects save the one specified: namely, the cellar floor, and the only question to be considered is whether there was a wilful omission on the plaintiff’s part to perform his contract in that regard. If there were, then he ought not to recover ; but if such omission were unintentional^ and trivial as compared with the whole contract, it was for the jury to say whether the contract was substantially performed, and the certificate of the architect unjustly withheld. Glacius v. Black, 50 N. Y., 149; Nolan v. Whitney, 88 id., 648; Doll v. Noble, 116 id., 230; 26 N. Y. State Rep., 629; Byron v. Bell, 10 N. Y. Supp., 693 ; 32 N. Y. State Rep., 323 ; Phillip v. Gallant, 62 N. Y., 256.

The evidence shows that the original contract for the work required the cellars to be graded, and levelled with ‘ concrete, to receive the asphalt. The entire area of the cellars was then to be covered with a thick coat of hot asphaltum, turning up at least three inches against the walls. On this was to be laid four inches of concrete, to be composed of best quality white English Portland cement and sand and small fragments of sharp angular stones not larger than would run through a two-inch ring, to be in proportion of one of cement and two of sand and four of stone, to be wet in small quantities as used, and well rammed and carefully leveled to a finish with a half inch of Portland cement worked to a true and smooth face.

After the work had commenced the architect instructed the plaintiff to substitute thicknesses of tar paper, as prepared by the Hew York Coal Tar Chemical Company, in place of the coat of hot asphaltum. On this tar paper the four inches of concrete was to be laid. The architect saw the cellar before the concrete was laid in, and, according to the plaintiff’s statement, although he knew there was water under the tar paper, he gave plaintiff no further instructions, and plaintiff went on and laid the concrete as required by the contract. The architect testified that before the concrete was laid upon the tar paper he called the attention of the plaintiff to the fact that there was water underneath and above the paper, and that the paper was afloat, and that he must take up the paper and re-lay it. This was denied by the plaintiff.

The concrete placed above the tar paper had to be “'well rammed,” as required by the contract. The effect of ramming sharp stones on top of tar paper would be to cut through the paper if the angle of the stone happened to be up when you rammed it; and in the proportion of one of cement to two of sand and four of stone there would be apt to be too many stones in that position. This was the plaintiff’s testimony. The architect swore that if the concrete was properly laid beneath the tar paper the sharp stones would cause little or no impression, and he would advise it. The plaintiff swore that he had leveled off the concrete bed beneath the tar paper as described in the specifications.

When the plaintiff called upon the architect for his certificate the latter asked him how much it would cost to make the concrete in the cellar four inches thick and put a brick wall around to be sure and keep water out. The plaintiff told him $300. The architect said if he would do that lie would give the certificate. The plaintiff refused unless he was to be paid for it. The architect said he would give no certificate until plaintiff had done the work.

The plaintiff’s explanation of the water coming into the cellar was that it did not come through the tar paper, but between the tar paper and- the wall, a defect which was remedied by the expedient finally adopted of bricking all around the cellar; that he originally proposed this as necessary to the architect when the change to tar paper was suggested and before any dispute had arisen, but he required extra pay for it, and that the architect declined to give him an order for it and directed him to go on and carry out the orders named, viz., to substitute tar paper for the bed of asphaltum.

It would seem from this evidence that there was a fair question for the jury as to whether there was an omission by plaintiff, willful or otherwise, to do any part of the work required by the contract, and as to whether the laying of the tar paper and the placing of the concrete above it was done in a workmanlike manner. If he did the work as required by the contract and by the architect, and $800 additional work which the architect insisted upon as a condition of his getting the certificate was intended to remedy defects for which he was not responsible, then it would seem that the withholding of the certificate, unless he complied with such condition, was unreasonable and unjust.' It is true that the architect was the plaintiff’s own witness and that they contradicted each other as to whether the plaintiff was ordered to take up and relay the tar paper after the water had come through; but it was for the jury to say what the fact was, whether the plaintiff was bound to do this or not.

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

Bischoff and Pryor, JJ., concur.


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    The Richard Thompson Company, Limited, App’lt, v. Augustus T. Brook, Resp’t.

      (New York Common Pleas, General Term,

      Filed April 6, 1891.)

    Promise—Agreement between oeeioers op corporation to accept REDUCED SALARY, NOT COMMUNICATED TO OR ACTED ON BY IT, CANNOT BE ENFORCED BY THE CORPORATION.
    The several officers of the plaintiff agreed among themselves to accept a, reduced rate of salary for future services, but the agreement was not communicated to or accepted by the board of directors. Held, that such agreement could not be enforced by the corporation; that the facts were not within the doctrine established by Lawrence v. Fox, 20 N. Y., 268.
    Appeal from judgment of the first district court in favor of defendant, in an action to recover a balance of money advanced to defendant for plaintiff’s use. The defense was a counterclaim for balance of salary due.

      J. Albert Lane, for app’lt; John A. Anderson, for resp’t.
   Bischoff, J.

Upon the trial it appeared that the plaintiff, a. corporation, by resolution of the board of directors, in March, 1890, fixed the rate of compensation to be paid the defendant, its secretary, for his services as such at $900 per annum i and that the defendant was paid at that rate for some time thereafter.

Subsequently, the officers of the plaintiff met and mutually agreed to accept a reduced rate of salary for their services to be thereafter performed; but it did not appear that the plaintiff was ,a party to this agreement, or that the same had ever been communicated to or accepted by the board of directors of the plaintiff.

The defendant claimed his salary at the former rate, and the plaintiff in this action sought to avail itself of the mutual agreement between its officers, asserting that although it was not a party to that arrangement which had been made for its benefit, it was entitled to an enforcement thereof.

The justice below decided contrary to plaintiff’s contention; and on this appeal plaintiff’s counsel urges that the facts are within the doctrine established by Lawrence v. Fox, 20 N. Y., 268.

We are of opinion that the ruling of the trial justice was correct.

In Lawrence v. Fox, the defendant had received a loan of money from one Holly, who was indebted to the plaintiff, upon his promise to pay the sum so loaned to the plaintiff in satisfaction of Holly’s debt; and Lawrence having accepted Fox as his debtor in the place of Holly was held entitled to recover from Fox.

The court of appeals has, however, repeatedly held that the ruling in Lawrence v. Fox should not be extended, and should be limited in its application to cases presenting the same essential facts. Lorillard v. Clyde et al., 122 N. Y., 502 ; 34 N. Y. State Rep., 224; Wheat v. Rice, 97 N. Y., 302.

In Vrooman v. Turner, 69 N. Y., 280, 284, Allen, J., delivering the opinion of the court, commenting on Lawrence v. Fox, says : " To give a third party who may derive a benefit from the performance of the promise an action, there must be, first, an intent by the promisee to secure some benefit to the third party, and second, some privity between the two, the promisee and the party to be benefited, and some obligation or duty owing from, the former to the latter which would give him a legal or equitable claim, to the benefit of the promise, or an equivalent from him personally. * * * It is true there need be no privity between the promisor and the party claiming the benefit of the undertaking; neither is it necessary that the latter should be privy to the consideration of the promise, but it does not follow that a mere volunteer can avail himself of it. A legal obligation or duty of the promisee to him will so connect him with the transaction as to be a substitute for any privity with the promisor, or the consideration of the promise, the obligation of the promisee furnishing an evidence of the intent of the latter to benefit him, and creating a privity by substitution with the promisor. A mere stranger cannot intervene and claim by action the benefit of a contract between other parties. There must be either a new consideration or some prior right or claim against one of the contracting parties, by which he has a legal interest in the performance of the agreement.”

As the right of a third person to avail himself of the benefit of a contract to which he was a stranger has been thus defined, we fail to see in the case at bar the elements essential to enable the plaintiff to insist upon the performance of an agreement between its employes to accept a lesser salary than that which it had contracted to pay in its contract of employment with them. So far as appears from the record before us none of plaintiff's employes were under any obligation to continue their services for it, and each of them had a right at any time to withdraw his services. The agreement was intended to affect only services to be performed in the future, and the plaintiff had neither a moral or legal right to insist upon the performance of such future services; and it does not appear that the plaintiff continued their employment relying upon the agreement among its officers, or parted with or did. anything by means of which the several officers would be estopped from claiming the salary which it had agreed to pay.

Judgment appealed from affirmed, with costs..

Daly, Oh. J., and Pryor, J., concur.


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    John B. Devlin, Adm’r, Resp’t, v. The Mayor, etc., of New York, App’lt, et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed April 6, 1891.)

    Judgment—Direction to enter.
    Where the conclusions of law in a referee’s report clearly and unmistakably settle the form and amount of the judgment to be entered, this is a sufficient compliance with § 1022 of the Code, requiring a direction of the judgment to he entered.
    Appeal from an order made at special term denying a motion made by defendant, The Mayor, etc., of New York, to restrain the plaintiff and the defendants other than The Mayor, etc., from entering judgment on the referee’s report upon the alleged ground that it does not direct the judgment to be entered thereon pursuant to § 1022 of the Code of Civil Procedure.

      T. C. Cronin, for pl’ff, resp’t; Franklin Bartlett, for the Mayor, etc., def’t, app'lt; E. Schenk, for def’ts, resp’ts.
   Bischoff, J.

The third, fourth, fifth, sixth and seventh conclusions of law as set forth in the referee’s report, in concise and unmistakable terms, settle the form and amount of the several judgments to be entered in favor of the plaintiff and the defendants other than The Mayor, etc., of New York, and this is a sufficient compliance with the requirement of § 1022 of the Code of Civil Procedure that the report “must direct the judgment to be entered thereupon.” Hinds et al. v. Kellogg, 37 N. Y. State Rep., 356.

In this view of the main question presented upon this appeal, it is immaterial whether or not the defendants, The Mayor, etc., of New York, have waived the objection to the report arising from the alleged omission of the referee to direct the judgment by moving to compel the parties entitled thereto to enter judgment upon the report. Our conclusion that the report is sufficient to authorize the entry of judgment preserves the right to cause such entry to be made without regard to the alleged waiver.

The order appealed from must be affirmed, with costs.

Allen and Pryor, JJ., concur.


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    Isaac Hattenbach, Resp’t, v. Charles Gundersheimer, App’lt.

      (New York Common Pleas, General Term,

      Filed April 6, 1891.)

    Brokers—Commissions.
    Where a broker has presented a purchaser satisfactory to defendant and a contract of sale is entered into, his commissions are earned and he cannot be deprived of them by the fact that the contract afterwards failed because of the attempted imposition of other terms.
    Appeal from seventh district court.

      Herring & Meyer, for app’lt; Langbein & Langbein, for resp’t.
   Pryor, J.

The action is by the broker against the seller to recover a commission “ of per cent of the selling price, if he sells my bakery or sends a party that does buy it” Such in terms was the written stipulation of the defendant. The plaintiff produced a purchaser who did buy, and to whom the defendant did sell the bakery. The defendant signed the contract of sale and accepted $100 in part payment; but afterward refused to carry out the sale, unless the buyer would secure the lease on the premises. This was not a term of the contract; and by insisting on it the defendant was the cause of the miscarriage of the negotiations. But, the plaintiff had already fulfilled his engagement by presenting a purchaser who did buy and to whom defendant did sell, by an agreement obligatory on both parties. It was then too late for defendant to escape liability to plaintiff for his commissions. Geoghegan v. Kelly, 34 N. Y. State Rep., 314.

The judgment is affirmed.

Bischoff, J., concurs.