author: Hatch, J.

text:
    Theodore W. McKnight, Pl'ff, v. Reuel H. Thayer, Def’t.

      (Superior Court of Buffalo, Trial Term,

      Filed September 22, 1892.)

    Brokers—Commission's.
    Defendant gave to plaintiff the exclusive right, for a limited period, 'to sell certain premises, and at the end of that period authorized him to sell it if he could, but reserving the right to sell himself. During the time limited, plaintiff made an offer of said premises to a church, which was accepted in case a contract for the sale of some of the church property should be carried out. The contract fell through, and the church retired from its acceptance of the offer. Subsequently, having sold its property, the church determined to purchase defendant’s premises, and authorized one of its officers to negotiate for it in his own name, which he did, and procured a verbal option from defendant at the price originally asked; the same was accepted, and defendant conveyed directly to the church, although he did not know that it was the purchaser until the deed was requested in that form. In an action for commissions, Held, that whether the purchase was by the church or its officer, the jury were warranted in finding that plaintiff was the procuring cause of the sale, and that a verdict in his favor would not be disturbed.
    Motion by defendant for a new trial made upon the minutes of the court.
    The testimony in this case was conflicting, but, under what seems to be a. fair charge by the court, affecting defendant’s liability, the following facts must be regarded as established by the verdict:
    Defendant was the owner of a valuable lot situate upon North street, in Buffalo; he gave to plaintiff the exclusive right to sell the same for a period of three months, at the price of $80,000. The price was subsequently reduced to $27,500, and plaintiff was authorized to name the latter sum as the purchase price defendant was willing to take. In pursuance of this arrangement, plaintiff made a written proposal of sale, at the last-named price, to the board of trustees of the Universalist Church. At or about the time this offer was made, the church, through its board of trustees, had given to Joseph Bork, of Buffalo, an option contract of sale of certain church property then owned by the society, and, it being supposed that said property would be sold, the board, and individual members thereof, examined several sites offered upon which to build a new church for the society’s use, resulting in a substantial consensus of opinion byihs^llicd th&t if the church property be taken under Bork’s contract, that they would purchase defendant’s property at the price fixed.
    This conclusion was communicated. by plaintiff to defendant Bork failed to fulfil the terms of his contract, and the church remained the owner of its property. When this event happened the church went out of the market as a purchaser, and plaintiff failed to effect a sale of the property to them at that time. The time having elapsed during which plaintiff held the- exclusive right to effect a sale of the property, defendant notified him of the fact and withdrew the right of exclusive sale, but authorizéd the plaintiff to sell the property if he could; and in the event he effected a sale he should have commissions at the rate of one per cent, on the purchase price, defendant, however, reserving the right to sell the property by himself or through other parties. About six months after Bork had forfeited his .contract the church effected a sale of their property. Upon the happening of this event the church immediately determined to purchase defendant’s lot, but fearing that defendant,, if he knew the church was the purchaser, would raise the price, they authorized the' témporary chairman, Mr. W. 0. Newman, to purchase the property in his own name for the church, and to offer $25,000. Mr. Newman communicated directly with defendant, and defendant supposed that he was dealing with Newman and him alone, and had no knowledge that the church was interested in the transaction. The offer of $25,000 being refused, Newman obtained a verbal option of purchase at $27,500; this he submitted to the board of trustees, and was by them authorized to conclude the purchase at that price, which he subsequently did, and the title was transferred directly from defendant to the church. The. arrangement between Newman and defendant rested in a paroi agreement, and defendant knew nothing about the church until requested to deed to them. Newman’s relation to the church, and that he was acting for them, was purposely withheld from defendant. After the sale was effected plaintiff demanded the commission of one per cent, and, payment being refused, brought this action, and has obtained a verdict.

      Sidney Bovingdon (John G. Milburn, of counsel), for pl’ff; Benjamin H. Williams, for def’t.
   Hatch, J.

The uncertainties of the law as applicable to this class of actions is strongly illustrated by the present case. There is not present the slightest evidence of bad faith upon the part of either party, and none is claimed. The defendant sold his lot under the firm belief that he, and he alone, had effected the sale and. that plaintiff had not the remotest connection with it, and was therefore considerably astonished when a claim for commissions was made. We are now to see if the law authorizes the verdict rendered. The law of this case, like the law of negligence, is comparatively plain, but the fittiág of the facts is quite likely to grow complicated. The plaintiff claimed upon the trial that he was the procuring cause of the sale, upon that theory the court-submitted the case to the jury, and upon that basis the verdict must be sustained, if it can be sustained. ■ The cases have not at all times exhibited harmony of expression, largely the result of ambiguity in language, but recent cases have settled all faulty expressions and uncertain construction of words, and these are some of the general rules that have been announced :

“ In all the cases, under all and varying forms of expression, the fundamental and correct doctrine is, that the duty assumed by the broker is to bring the minds of the buyer and seller to an agreement for a sale, and the price and terms on which it is to be made, and until that is done his right to commissions does not accrue.” Sibbald v. The Bethlehem, Iron Co., 83 N. Y., 382.

“ It is sufficient to entitle a broker to compensation that the sale is effected through his agency as its procuring cause; and if his communications witli the purchaser were the cause or means of bringing him and the owner together, and the sale resulted in consequence thereof, the broker is entitled to recover.” Lloyd v. Matthews, 51 N. Y., 132.

“ The question whether the broker is entitled to commissions turns on the inquiry whether the things he has done while his agency continues have brought forth a party able, willing and ready to accept the owner’s offer of sale." ¿¡later v. Bolt, 10 St. Rep., 261-2. In the light of these authorities, and many others, the facts are to be examined.

Plaintiff had for three months the exclusive right of sale; that he failed to procure a purchaser within that time is conceded; defendant, therefore, had the right to terminate the contract and withdraw the property absolutely from defendant’s hands without liability for commissions; and if he did this, acting in good faith, he could thereafter sell to the purchaser with whom plaintiff had negotiated, and avail himself of the fruits of plaintiff’s labois with no liability attaching for commissions. While defendant terminated the exclusive contract, he still continued plaintiff as agent for the sale of the property, with an assurance of commissions if he procured a purchaser. Did the jury have a right to find that he procured one ? Plaintiff had made to the church trustees a written offer of sale, with defendant’s sanction ; he had seen the individual members of the board, and he continued to see and talk with them, and he had produced in their minds the conviction that this property was suited to their purpose,- and a determination upon their part to purchase should they sell their church. It is, therefore, clearly seen that his efforts would be successful dependent upon the contingency of Bork’s fulfilment of his contract. This failed, and negotiations stopped, but, so far as the board of trustees were concerned, their minds did not change with respect to the property; they could riot buy unless they sold, but if they sold, plaintiff’s - efforts had produced conviction, and when they finally sold it needed no further efforts from plaintiff, defendant or any other source to set forth the advantages of defendant’s property; they at once, unanimously, determined to purchase, and they did purchase, paying therefor the price which defendant had authorized plaintiff to offer the property for. What, then, produced this condition of mind in the board of trustees? The jury have made answer upon all the facts that it was plaintiff’s efforts, and I am unable to see wherein the testimony fails of sustaining the conclusion. It is suggested that the church had ceased to be in the market as a purchaser after Boric’s failure to fulfill his contract, and that as no sale had then been effected, its subsequent entry into the market is to' be treated as though there had never been negotiations with them. This view is not supported either by the facts found by the jury, or by authority. In this regard the case very much resembles Morgan v. Mason, 4 E. D. Smith, 636.

In that case plaintiffs were employed to sell defendant’s house a lady called desirous of selling a house and purchasing another; she was informed of defendant’s house as being for sale, with the price named ; she examined it and was suited with it, but as her house was not sold the matter rested; three months after her house was sold, and she then called upon another party and desired that he see defendant and ascertain if he still wished to sell. This was done, and a sale accomplished. The opinion of the court says: " These facts -show that it was through plaintiffs’ instrumentality that Mrs. Kent was apprised of the fact that defendant’s house was for sale ; and the information thus received led to her ultimately purchasing it” In the present case McKnight’s efforts, as the jury have found, created a mind to buy which ultimately led to the arrangement by Newman vesting the church with title. It is farther suggested that as the church never concluded a purchase with plaintiff, and were not ready to buy at any time when he saw them, therefore it is conclusively established that he failed to fulfill his contract. This view entirely excludes the result of plaintiff’s efforts and limits his right to commissions, unless he be shown to have renewed negotiations followed by a purchase as the result of them. This view is not upheld by any authority cited, or by any that I am able to find. If plaintiff was the procuring cause, as the jury have found he was, then it matters not when, where, or under what circumstances he procured the purchaser, so long as his agency continued, and the sale was made, and whether he was present at the sale or had no knowledge of it becomes an immaterial fact. This the authorities sustain. In Sussdorff v. Schmidt, 55 N. Y., 322, Church, Ch. J., says: “But if the purchaser is found by his efforts and through his instrumentality, he is entitled to compensation, although the owner negotiates the sale himself. * * * Nor is it indispensable that the purchaser should be introduced to the owner by the broker nor that the broker should be personally acquainted with the purchaser, but in such cases it must affirmatively appear that the purchaser was induced to apply to the owner through the means employed by the broker.” In this case the purchasers were attracted to the property by means of advertisements, instruments used by the broker, but he in fact did not know the purchasers and had no negotiation with them, yet a recovery for commissions was upheld, based upon a finding, by the jury, that the things which the broker did were the procuring cause of the sale.

In Lloyd v. Matthews, 51 N. Y., 132, the broker had called the purchaser’s attention to the property, but did not know of the negotiations which effected the sale, and the defendant was ignorant of plaintiff’s efforts in calling the purchaser’s attention to the property oi- that the purchaser came on account thereof. Upon this subject the court said: “It is sufficient that the purchaser is in fact such customer; ” and, also, that it was defendant's duty to inform himself of the source through which the purchaser procured his information respecting the property. Other courts have announced a like doctrine. In Hanford v. Shapter, 4 Daly, 243, the plaintiffs, brokers, called the attention of ana Praul to the property sold, through the agency of a third party, Shattuck. Praul, in company with the purchaser, looked at the property, then went directly to the owner concluding a purchase, at the time stating to the owner that no broker was connected with the matter.

Two questions were discussed:

1st. Did the employment by defendant continue up to the time of the sale ?

2d. Were the efforts of plaintiff the producing cause of the sale ?

The first question was found in favor of plaintiff on conflicting evidence. The second was found to exist from the undisputed facts, although defendant was ignorant of the connection of the broker with the matter, being informed that, no brokers intervened.' The court, however, held that he was not relieved from the payment of commissions, saying: “ If the plaintiffs, as brokers, under due employment by the owner, are the procuring cause of the sale, they are entitled to commissions, although the owner may close with the purchaser in ignorance of the fact that the latter had seen the brokers, if he is not misled by any act of the broker.” Upon similar and varying facts, a. like result is reached in Lincoln v. McClatchie, 36 Conn., 136; Arnold v. Wood, 13 W. D., 302; Winans v. Jaques, 10 Daly, 487; Anderson v. Cox, 16 Neb., 10. It is farther claimed that Newman was in fact the purchaser, and that, as the undisputed testimony shows, Newman did not see or talk with plaintiff, therefore it can in no view be held that plaintiff was the procuring cause of the sale. The claim begs the question involved, for, whether we treat Newman as an independent purchaser, or as the agent of the church, as he in fact was, the same question confronts us. When the church had sold its property, it immediately determined to purchase defendant’s; this condition, as the jury have found, was produced by plaintiff. The board said to Newman, “You buy for us,” and this he did. If he acted for the church, then it was the result of the action of the trustees, and they were influenced to take such step and give such direction through plaintiff’s efforts. If we treat Newman as independent of the board, acting for himself, then we inquire what induced him to become a purchaser? Where did he get his information that this property was in the market ? From the board, and they from plaintiff. Thus we see that the primary source in either event is directly traceable to plaintiff. In this regard the case very closely resembles, and in principle there is no distinction, Lincoln v. McClatchie, 36 Conn., 136.

The facts of that case were, that one Goodwin, who was desirous of having his friend Burdick purchase property upon the street upon which he lived, saw an advertisement in the paper that, plaintiff had property for sale on this street; upon application to him he was informed of defendant's premises, examined the same and reported to Burdick, advising him to purchase; thereupon Burdick examined the property, and then went direct to defendant, who was ignorant of what had transpired, and concluded a sale. Upon thése facts it was held that the broker was entitled to commissions; that the information imparted to Goodwin, and by him to Burdick, was to be treated as though imparted to the lat> ter by plaintiff, and that as the sale was consummated, although at an advanced price over the sum named by plaintiff to Goodwin, yet that the former was to be treated as the procuring cause of the-sale, and that defendant was liable for the commissions, and this-result was reached, notwithstanding the fact that defendant reserved the right to sell the property himself, the court- announcing, upon the latter point, that the reservation of the right to sell meant a sale to a purchaser procured independently of the broker. It is-said that this result cannot be reached in this case, for the reason that defendant would not have sold to Newman had he known that the sale was for the church. But it appears that there was at no time a binding contract of sale between Newman and the defendant; the latter could have refused to fulfill the terms of his verbal agreement with Newman without liability to the latter or to the church, whatever might have been his attitude to the plaintiff in this respect.

But while the right of refusal thus rested with defendant, he was informed that the property was to be transferred to the church. He then had the opportunity to repudiate the agreement on the ground that he had been misled or for any other reason; he also-had opportunity to inquire with respect to plaintiff’s connection with the transaction and protect himself from liability for commissions.

He, however, chose to convey to the church without inquiry or objection, and consequently must be held by the consequences. This reasoning, while it leads to the result that the purchase was by the church, yet it also reaches the conclusion that whether the-sale was to Newman or the church, the result must be the same-on the facts found.

Counsel for defendant cites and relies upon certain cases which, he claims, conclusively dispose of this question in favor of defendant ; of these are the following : Satterthwaite v. Vreeland, 3 Hun, 152; White v. Twitchings, 26 id., 504.

In the latter of these cases, the broker was employed to sell certain property at a fixed price; he failed to sell, and the owner then opened negotiations with the same person and succeeded in effecting a sale at an advanced price. It was held that the broker not having effected a sale at the price authorized, the owner .was at liberty to sell, to the same person, at an advanced price, without; liability for commissions. The rule is here recognized that the broker must sell at the price named or procure a purchaser ■at that price, or he fails and is entitled to no commissions. But in the case we are now deciding the jury have found the broker a moving cause of sale, and the price received was such as the defendant asked and had authorized the plaintiff to offer the property for. The difference between the cases is therefore apparent.

In the other of the cases cited the principle of the decision is the same, but the fact in one respect is reversed, for while in the White case an enhanced price was obtained, in the other a lower ■sum was accepted. But in both the principle was applied, and has been in this decision recognized, that under the contract the broker was required to sell at the price given him, and failing in that no commissions were earned, for the reason that there was failure of compliance with the terms of the contract which the broker had accepted.

Of course the rule would be different if bad faith intervened and defeated the broker’s consummation of a sale. In Wylie v. Marine Nat. Bk., 61 N. Y, 415, another of the cases rélied on, the broker was authorized to sell at the price of $80,000. The best offer he was able to obtain was $75,000, and thereupon he practically abandoned effort, -when a third party intervened at the request of the purchaser who had made the previous offer of $75,000, and through the latter agency they made offer of $80,-000, which was the price asked and which was accepted. Like the other cases, it was held that the broker failed to fulfil the terms of his contract, and in consequence was not entitled to recover.

In the case cited, however, the court had no difficulty in reconeiling the facts with this rule of law. “ The broker must be the efficient agent or the procuring cause of the sale. The means employed by him and his efforts must result in the sale. He must find the purchaser, and the sale must proceed from his efforts acting as broker.” In this case, under a favorable charge for defendant, the jury has found that this was ezactly the-service rendered by plaintiff to defendant in this action. In Goldstein v. Walters, 28 St. Rep., 177; 7 N. Y. Supp., 757, the denial of plaintiff’s right to recover proceeded from the fact that plaintiff was not the procuring cause of the sale, a distinction upon which the decision in this case turns, as has been iterated and reiterated many times.

These are the only questions urged upon my consideration in this case; the result reached is adverse to very firm impressions held by the court prior to an examination of the facts and the law applicable thereto; but after an extended and careful examination I can find no ground upon which to set aside this verdict.

The motion for a new trial is therefore denied, with costs.


source: Caselaw Access Project

author: Beckwith, Ch. J.

license: Public Domain

text:
    In the Matter of the Application of Amelia B. Reynolds for the Appointment of Commissioners.

      (Superior Court of Buffalo, Special Term,

      Filed January, 1891.)

    1. Eminent Domain—Remedial act.
    Plaintiff owned half of a double house, a portion of the other half of which was taken for a street, leaving a strip between plaintiff’s house and such street, and the side of her house rough and exposed. The commissioners awarding nothing to her for her damages because no part of her land w is actually taken, a remedial act was passed by the legislation some years later authorizing the city to ascertain and pay her the damages sustained. Meld, that the legislature had power to pass such act, and that the facts fully warranted it.
    2. Same.
    Pending proceedings under said act a motion for stay was made on the ground that the statute was procured through the concealment óf the fact that plaintiff had released the city from all claims in consideration of the conveyance to her of the building to be removed; such concealment was denied, and plaintiff claimed to have executed the release in reliance on representations of the city attorney that she could easily acquire the strip of land, which she failed to do. Meld, that a stay would be granted unless plaintiff stipulated that the commissioners might allow in reduction of the award the value, if any, of the property conveyed to her above the cost of removal.
    Motion for stay.

      William F. Mackey, for the City of Buffalo; Daniel McIntosh and O. O. Cottle, for Mrs. Reynolds.
   Beckwith, Ch. J.

Mrs. Amelia E. Reynolds was the owner of a lot of land on the north side of North street, in the city of Buffalo, about forty-four feet in front and 415½ feet in depth, and Mr. George 0. Greene owned a lot of the same dimensions adjoining on the easterly side; upon those lots a double dwelling-house whs erected in such form that the continued existence of both houses was necessary to preserve their value, and the destruction of one necessarily seriously injured the other. The houses were so situated that the dividing line of the lots passed through the center wall of the houses.

In laying out and opening Elmwood avenue, the city took all of the easterly lot and building except a piece about three (3) feet in front on North street, diminishing towards the rear to a width of 1.45 feet at the north end. This strip separates the lot of Mrs. Reynolds through its whole length of 415£ feet from the newly opened Elmwood avenue. The houses which stood upon those lots were high, three story and basement brick houses, expensively built for the purpose of being used, as they were constructed, together.

In taking the land for the opening of Elmwood avenue, the commissioners awarded.no compensation for the diminished value of Mrs. Reynolds’ property, because no part of her land being actually taken, an award to her, it was thought, was not authorized by the statute. In opening the avenue, the building that stood on the lot that belonged to Mr. Greene had to be taken down and the materials removed. It was accordingly taken down up to the westerly line of the avenue, leaving the side of Mrs Reynolds’ house with a ragged and unsightly surface not easily susceptible of improvement, which undoubtedly greatly diminished the saleability and value of the house, more particularly for the reasons stated in the papers, that the city was forbidden by the owner of the three feet of land from entering upon it, and Mrs. Reynolds was unable to get the consent of the owner to sell the ■strip of land for her benefit.

Obviously, if real justice were to be done by the city, Mrs. Reynolds ought to have been compensated in some manner for ■the damage done to her property by the opening of the public ■avenue. There is no moral reason why she should not be made good for any loss she has sustained for a public object, and whatever objections of technical law may be raised in a court of law, there is no moral or legal argument that ought to prevent the legislature from providing for all that justice requires in her case. There is no doubt of the power of the legislature to require the city to do her justice, to make her just compensation, even if the city could successfully defend her claim in a court of law. Town of Guilford v. Supervisors of Chenango, 18 Barb., 615; 13 N. Y., 143; Sinton v. Ashbury, 41 Cal, 530; Borough of Dunmore's Appeal, 52 Penn. St., 374; People v. Flagg. 46 N. Y., 401.

Where good conscience requires it the legislature may impose upon a municipality the duty of raising by taxation the money necessary to discharge a just and equitable obligation, and this can be done in cases where the courts could give no relief on account of being governed by fixed rules of law, and,- perhaps, equally restricted and limited rules of equity. In this case the question as to what justice requires with respect to Mrs. Reynolds’ claim is one necessarily for the legislature or the common council.

In 1886, the common council, appreciating, as it would seem, the injustice likely to be done to Mrs. Reynolds, passed a resolution requesting the legislature to enact a law ehabling the city to make just compensation to her for the damage done to her property. The legislature, but not until its session, 1890, enacted a -statute, which was approved by the governor, May 21, 1890, authorizing the common council to ascertain, audit and adjust the .-amount of damage occasioned to the real property of Mrs. Reynolds, and providing that the amount of damage should be appraised by three commissioners to be appointed by this court, and that the report of the commissioners should be -approved by the court before being presented to the common council for audit, and that “ when the amount of said damage is appraised, the same ■shall be raised by assessment upon the property benefited by the ■opening of Elmwood avenue,” and paid over to Mrs. Reynolds.

It is under this statute that the proceedings now sought by this motion to be stayed are taken.

But it appears from the moving papers that while the bill for relief was pending before the legislature, as far back as 1887, a ■contract was entered into between said Amelia E. Reynolds and the city of Buffalo, by which the city sold and conveyed to her ihe portion of the building and other moveable property upon the land which had belonged to Mr. Greene, and to which the city had acquired title by the proceedings to open Elmwood avenue, and by which contract, in consideration of such sale, she “relinquished and released ” all claims against the city which she had or claimed to have, and hold, or which might afterwards accrue to her, by reason of any damage resulting to her or her premises from the taking of the lands to open said avenue, and agreed to take down the building and remove the materials.

It is claimed in the papers presented on behalf of the city on this motion that the passage of the act for the relief of Mrs. Reynolds was obtained from the legislature by a certain imposition, consisting in the suppression or concealment of the fact that Mrs. Reynolds had, for a consideration, released all claims for damage to her property. The affidavits farther state that at the time the city instituted these proceedings for the appraisement of the damages and when the city attorney applied to the court for the appointment of the present commissioners, that the common council and the law officers of the city were unaware of the fact or had overlooked the fact that Mrs. Reynolds had entered into the said agreement before the passage of the act of the legislature, and that as soon as the fact was discovered the preparation of - the papers for this motion was at once begun for the purpose of obtaining a stay of the proceedings before the commissioners until the common council might take steps to obtain from the legislature a repeal of the statute.

On the other side, in behalf of Mrs. Reynolds, the depositions state that no disguise or concealment was attempted towards the legislature or the common council; that notice of the pendency of a bill in the legislature for the relief of Mrs. Reynolds was published in the Buffalo Commercial, a newspaper published in the city of Buffalo; that the situation was perfectly understood by the late corporation counsel, and that the statute was enacted and the proceedings were commenced because the justice of compensating her for her damage was itself urging the procedure.

It is also claimed by Mrs. Reynolds that when she entered into the agreement with the city it was represented to her by the corporation counsel that he could and would obtain a conveyance to her of the narrow strip of land adjacent to her premises, and that she entered into the agreement induced by such representations and in belief that they were reliable and not doubting that she could readily acquire the strip of land, with the possession of which she might have made the materials sold to her of some value; but that the owner of the strip of land absolutely refused to part with the title of it to her, and, consequently, that she has received no compensation, because the expense to her of taking down the building and removing the materials from the street was all the materials were worth

It is also urged by counsel for Mrs. Reynolds that the court has no power to arrest the execution of an act of the legislature, however unwise its provisions may be, or whatever the motives or inducements may have been which led to the enactment, citing the cases of People v. Draper, 15 N. Y., 545 ; People v. Shepard, 36 id., 290, and other authorities.

It may be remarked at once that the validity of the considerations brought to bear upon the legislature to secure the passage of the act cannot be inquired into on this motion; if anything, only the right and justice of the objects for which the proceedings are instituted and conducted under the supervision of the court.

If the only preliminary question was the validity of the release, and it was found to be binding, the court could safely refuse its sanction to the proceedings notwithstanding the statute. But the presumption is that the legislature knew what it was about, and, as already observed, its powers are not limited to remedial acts in aid of legal claims. The representations made to the individual members of that assemblage cannot be inquired into. It may be that the experienced men who composed the legislature deemed it evident that the value of the materials above the expense sustained by Mrs. Reynolds in taking down the building was an insignificent compensation for the very substantial damage alleged to have been done to her property, the same property upon which had been assessed a sum in the neighborhood of $3,000 for the public improvement which occasioned the damage.

This motion is for a stay until the common council and legislature can take action for the repeal of the statute under which the city is required to take these proceedings. The learned counsel for the city claims that it is patent that the legislature will repeal the act on the ground that Mrs. Reynolds had legally released all claim for damages. The city’s present law officers, learning from the late city attorney, Mr. Laughlin, that he, just before retiring from office, had discovered the existence of the contract between Mrs. Reynolds and the city, and that he had proposed to suspend the proceedings, deemed it also their duty to bring the matter to-the attention of the court, and to ask a stay of the proceedings.

I am disinclined to grant a stay upon the proofs as they stand before me. On behalf of Mrs. Reynolds, it is stated that she signed the contract upon the assurance of the corporation counsel that the strip of land could be got for her, and that it was not doubted she could acquire the possession of the strip to enable her to restore her own house to a proper condition.

It appears probable that she entered into the contract induced by excusable misapprehension or mistake as to her ability to make the purchase of the Greene building available to her profit in connection with her house and lot. Her affidavits show that she had to take down the building purchased from the city 'and remove the materials on account of her inability to get possession of the strip of land adjacent to her house, and that the expense to her was equal to the value of the materials. The affidavits in her behalf tend strongly to establish the claim that the damage-occasioned to her property by the opening of Elmwood avenue was very large, and that her loss was for the public benefit. If the facts are all as she affirms them to be in this connection, they present a case upon which the legislature, disregarding legal technicalities, might conscientiously and equitably require the city to make a fair and adequate compensation, for it is not the policy of the state to take or destroy' private property for the public requirements without making compensation. If the facts are not as she asserts, opportunity will be found for the city to make the contrary to appear.

There are, it is true, some circumstances that make it appear probable that the legislature in fact misapprehended the situation. It appears that the resolution by which the city requested the legislature to pass an act for the relief of Mrs. Reynolds was adopted by the common council in August, 1886 ; that Mrs. Reynolds executed the instrument of release in July, 1887 ; that more than two years afterwards, in 1890, she or her agents obtained the city clerk’s certificate of the adoption of said resolution, and used it with the members, or some of the members of the legislature in securing the passage of the statute. These circumstances offer some grounds for supposing, as is now claimed by the city attorney, that the legislature was deceived -into enacting the statute. If the certificate was obtained and used for the purpose of imposing on members of the legislature, the intention might, by rules of law,- be imputed to her. But technicalities and legal imputations cannot bind the legislature. The question was whether her property was destroyed without compensation, and the passage of the act implies, in a way the court cannot dispute, that the legislature looked into all the circumstances and determined that she was entitled to compensation.

On behalf of Mrs. Reynolds, the depositions deny that any misrepresentations were made to the legislature and state that the late corporation counsel was acquainted with all the circumstances of the case from the beginning and approved of the appointment of the commissioners of appraisal. Counsel for Mrs. Reynolds insists that the court has not the right to intervene and stop the proceedings before the commissioners which the statute requires the city to prosecute. But by the terms of the statute the proceedings taken before the commissioners are subject to the approval of the court, and it is laid down in The Matter of the city of Buffalo to take lands for the widening of Carlton street, 78 N. Y., 370, that “courts have always control over their own proceedings, and where there is not express prohibition, may deal with them so that what is right and just may be reached.”

The affidavits and circumstances tend pretty strongly to eonvince me that Mrs Reynolds has not received a just compensation for her injury. The letter of the statute is that the commissioners shall appraise the damage to her property, but the intent is that an award shall be made for the loss she has sustained on account of the damage to her property.

If she has received anything in satisfaction of her claim it ought to be allowed. She says the materials, etc., upon the lot taken for the street were of no value beyond the expense of removal ; but on that question the city has not had an opportunity to be heard. The statute is yet in force and the legal presumption which binds the court is that it was enacted by .the legislature intelligently. It seems to me, from all the knowledge furnished on this motion, that it is a just statute.

The order I propose will not interfere with the due operation of the statute. Whether the release Mrs. Reynolds executed ought, to override her equities and prevent confirmation of any report that may be made by the commissioners, and whether on account of misapprehension or mistake she ought to be exempted from the instrument of release executed by her, are questions which, from want of proper proofs, must be reserved until the coming in of the .commissioners’ report, or until upon some subsequent hearing the proofs can be fully gone into.

Let an order be entered granting a motion for a stay, unless Mrs. Reynolds consent to enter into- a stipulation in writing herein that the commissioners in making their appraisal of. her damages shall ascertain and allow in reduction of the award to her, the value, if any,, of the property conveyed to her by the city above-the expense of taking down the building and removing the materials and property, and if she so consent and stipulate the motion is denied.

The form of the order, if not agreed upon by counsel, to be settled by a judge of the court.

Costs of the motion not allowed to either party.


text:
    The People ex rel. Amelia E. Reynolds v. The Common Council of the City of Buffalo.

      (Superior Court of Buffalo, Trial Term,

      Filed October 1, 1892.)

    Statutes—Repeal—Does not affect vested eights.
    Proceedings under an act for the relief of the relator resulted in an award to her, which was confirmed by the court. A few days later the act was repealed. Held, that the award was not affected by such repeal, and that it was the duty of the common council to audit ana adjust it.
    Trial upon the return to an alternative writ of mandamus directing defendant to audit and adjust the claim of Amelia E. Reynolds, arising out of the extension, by defendant, of Elmwood avenue in the city of Buffalo. In 1885 the city instituted proceedings to appropriate certain lands for an extension of a street called “ Elmwood avenue.” The relator was at this time the owner of the westerly part of a brick structure consisting of two dwelling houses joined together, constituting a double bouse. The portion of the land taken by defendant embraced that part upon which stood the easterly house, less about three feet of land, leaving, when the eastern house was torn down, the strip aforementioned, owned by the owner of the latter house. Ho part of relator’s land was taken under the proceeding, but the effect of the demolition of the house taken was to seriously impair the value of relator’s property. The commissioners appointed to appraise the value of the land taken, and award damages in the proceeding, determined that they had no power to award compensation for the damages to the property of relator, for the reason that her property did not abut upon the proposed avenue, and that none of it was taken for the pi’oposed improvement. This determination seems to have been acquiesced in by all parties. In 1886 the common council, recognizing the hardship and injustice worked by the determination of the commissioners, adopted a resolution requesting the legislature of the state to pass an act authorizing defendant to make just compensation for the injury inflicted by its public improvement. The legislature took no action thereon until May, 1890, when it passed a law providing for the relief of relator, being chapter 393, Laws of 1890. Thereafter the relator applied for the appointment of commissioners, in pursuance of said act. The city appeared upon such application, and commissioners were appointed, who entered upon the performance of their duties, and proceeded to take testimony.
    At about the time the commissioners were ready to make their report, the city, through its attorney, applied for a stay of all proceedings under said act, alleging upon said application that prior to the passage of the act heretofore mentioned the relator had entered into a contract with the city whereby, in consideration of the conveyance to her of all the material contained in the house taken by the city, and to be torn down, and certain trees and-shrubbery, she released the city from all liability for damage growing out of said street proceeding; that said contract had been overlooked theretofore, and that as soon as discovered a bill had been drafted and introduced in the legislature, then in session, for a repeal of the statute above mentioned. The court before whom the argument was had made an order, granting the stay, unless relator entered into a stipulation, in writing, that the commissioners, in making their appraisal of damage, ascertain and allow, in reduction of the award, the value of the property conveyed, under the contract by the city, above the expense of taking down the buildings and removing the materials and property, and if such stipulation was made the motion was denied. Relator entered into such stipulation and thereupon the said contract was presented to the commissioners, and considered by them, and proof was offered in connection therewith by both parties thereto, and the whole matter considered by the commissioners, who subsequently made their report, awarding relator damages in the sum -of $5,500. Thereafter, and on February 10, 1891, a motion was made before the court for a confirmation of the report, the same was granted and the report was in all respects confirmed. On the 14th of February following, an appeal was duly taken from this -order to the general term of this court." On March 3, 1891, an act was permitted to become a law, by the non-action of the governor thereon, which act repealed the act heretofore mentioned. Ohapter 42, Laws of 1891. This act was printed in the record on appeal to the general term and was considered by the court. The order appealed from was affirmed by the general term, and, thereupon, relator made application to defendant for payment of the award, payment was refused, and, thereupon, she sued out this writ of mandamus. The return to the writ sets out substantially the facts above named, and denies that defendant unjustly neglects and refuses to audit and adjust the said claim for damage. A trial having been had, the foregoing facts are found.

      O. O. Cottle, for relator; William F. Machey, for def’t.
   Hatch, J.

Upon the motion for a stay of proceedings, Judge Beckwith, in an elaborate and able opinion, determined that it was within the power of the legislature to pass an act for the relief of the relator, and that the facts of this case fully warranted its intervention. He farther held that the fact of the execution by her of the contract set out in the return, based upon the motion for a stay, and proved before the commissioners, did not work an estoppel of her right to have her claim for damage considered under the act, although being highly proper for consideration by the commissioners in determining the amount of loss she had sustained. All of these matters appeared in the record on appeal to the general term, they were considered by the court and the court concurred in the opinion of Judge Beckwith, as the court at special term had previously considered itself bound by the decision and its logic, on the motion to confirm the report from which the appeal was taken. See Matter of the Application for the Appointment of Commissioners, etc., to Assess Damage for the Extension of Emlwood avenue, ante, 627.

It follows, therefore, that as to these questions the decision is res adjudícala.

The act provides that when the award shall be made by the commissioners of the damage sustained, and the report approved by the court, “ the same shall be raised by the city by assessment upon the property benefited by the opening of Elmwood avenue from North street to Butler street," and the amount of such assessment, when collected, shall be paid over to Amelia E. Beynolds.” This provision of the act is mandatory and imposes a plain duty. The court has said by its several judgments that the award of the commissioners is in accordance with law, and creates a liability against the city. All of the facts alleged in the return have been considered. This determination, therefore, is. not an idle ceremony, but creates a mandate to be obeyed, and when defendant refused to obey it, it unjustly refused, and consequently must be compelled to act by the writ of the court, unless excused by other matters. It is, however, said that when the motion was argued before Judge Beckwith, and when the court confirmed the report, of the commissioners, the repealing statute had not been passed. This is true, but the act was before the general term, although objected to by the relator. As the general term expressed no written opinion, I have examined this question.

The effect of confirmation of the commissioners’ report was to determine that the relator was entitled to payment of the sum awarded, which the city was to collect and pay over; what before existed as a proceeding now ripened into a judgment, to be paid in the manner specified by the statute. Mayer v. Mayor, etc., 101 N. Y., 288; Reinhardt v. City of Buffalo, 39 St. Rep., 305.

It cannot, therefore, be attacked except in a direct proceeding, unless it be void. Matter of Ferris, 10 St. Rep., 483.

The latter is claimed upon the ground that there is now no law in existence upon which it can rest.

It was said by Chief Justice Marshall in Fletcher v. Peck, 6 Cranch, 87-135:

“ If an act be done under a law, a succeeding legislature cannot undo it. The past cannot be recalled by the most absolute power. * * * When, then, a law is in the nature of a contract, when absolute rights have vested under that contract, a repeal of the law cannot divest those rights.” Cited with approval in People v. O'Brien, 111 N. Y., 48; 19 St. Rep., 173.

In Butler v. Palmer, 1 Hill, 324, the following language from Puffendorf is quoted with approval: “ The law itself may be disannulled by the author; but the right acquired by virtue of that law whilst in force must still remain." Id., 335.

Many other authorities might be cited to the same effect. It remains, therefore, to see whether the steps taken have vested in the relator a legal right

In Cornell v. Donovan, 14 Daly, 296; 14 St. Rep., 687, it is said that a judgment is a contract of the highest nature.

In Mahaney v. Penman, 4 Duer, 606, it was declared to be a contract within the meaning of that clause of the federal constitution which declares that “ Ho state shall pass any law impairing the obligation of contracts." A like rule was announced in Mather v Bush, 16 Johns., 233; Roosevelt v. Cebra, 17 id., 108.

Any law which impairs the obligation of a contract by preventing its enforcement or which materially abridges the remedy for enforcing it which existed at the time, without supplying an adequate remedy in substitution therefor, infringes the constitution. McGahey v. Virginia, 135 U. S., 662.

It matters not whether the judgment be treated either absolutely or technically as a contract, it is yet settled beyond dispute that the rights acquired thereunder are vested rights, and have been so held in proceedings of this character. Matter of Rhinebeck & Connecticut R. R. Co., 67 N. Y., 242; People ex rel. Gas Light Co. v. Common Council, 78 N. Y., 56.

In the latter case Church, Oh. J., said: “We are of opinion that the award in this case became at the expiration of ten days from the filing of the report of the commissioners final and conclusive upon both parties, and that the relator then had a legal right to compel the performance of the duties enjoined by statute upon the common council for the assessment and collection of the amount awarded. It follows that the common council could not by resolution or otherwise deprive the relator of that right, and that the resolution of rescission as to him was unauthorized and void." Id., 60, 61.

In Gilman v. Tucker, 128 N. Y., 204; 40 St. Rep.,.71, Ruger, Ch. J., said: “We must bear in mind that a judgment has here been rendered, and the rights flowing from it have passed beyond the legislative power, either directly or indirectly, to reach or destroy. After adjudication the fruits of the judgment become rights of property. These rights became vested by the action of the court, and were thereby placed beyond the reach of legislative power to affect”

The authorities cited by counsel for the city relate to actions-pending, or were to recover penalties, in which case the authorities are uniform in holding that a repeal of the statute wipes out the penalty, and even extends to a judgment obtained, which, after repeal, will be stayed in its execution. This distinction was noted in Van Dyck v. McQuade, 86 N. Y., 49.

It follows, from these authorities that the relator’s award remains unaffected by the repeal of the statute, and that it is the duty of the defendant to audit and adjust it. It is a mistaken view of the law upon which their refusal is based. Let a peremptory writ issue as prayed for, with costs to the relator.


author: Ehrlich, Ch. J.

text:
    Eva L. Goldenson, Resp’t, v. Chester B. Lawrence et al., App’lts.

      (City Court of New York, General Term,

      Filed October 24, 1892.)

    Pleading—Amendment—Teems.
    The recital in an order granting leave to amend a pleading on terms that it was made with the consent of the parties concludes the parties on. appeal.
    Appeal from order granting leave to serve an amended answer and imposing conditions.

      Goodrich, Deady & Goodrich, for app’lts; David Leventritt, for resp’t.
   Ehrlich, Ch. J.

The court below on granting leave to amend had the power to impose such terms as it deemed just, Code, § 723, and the terms imposed can hardly be called an abuse of discretion; besides the order recites that it was made with consent of the parties.

This recital concludes the parties on appeal. Smith v. Brant, 11 Civ. Pro., 354.

Under the circumstances the order appealed from must be affirmed, with costs.

Van Wyck and McCarthy, JJ., concur.


text:
    Eva L. Goldenson, Resp’t, v. Chester B. Lawrence et al., App’lts.

      (City Court of New York, General Term,

      Filed October 24, 1892.)

    Motions and ordees—Settlement.
    While the court on appeal may, where the facts are undisputed, direct the resettlement of a case or order to conform thereto, where the facts are-disputed the certificate of the judge as to what occurred before him must he accepted as conclusive.
    Appeal from an order made May 31, 1892, resettling former order, etc.

      Goodrich, Deady & Goodrich, for app’lts; David Leventritt, for resp’t.
   Ehrlich, Ch. J.

Where the facts are undisputed, the court, on, appeal, may direct the resettlement of a case or order to conform, to the facts. New York Rubber Co. v. Rothery, 112 N. Y., 592; 21 St. Rep., 841; S. C., second appeal, 119 N. Y., 633; 29 St. Rep., 37; Gleason v. Smith, 34 Hun, 547; Healey v. Terry, 26 St. Rep., 929.

But here the facts are disputed. The certificate of the judge as to what occurred before him must be accepted as conclusive. Green v. Shute, 26 St. Rep., 114; Healey v. Terry, supra. This rule applies to the present contention, Smith v. Grant, 11 Civ. Pro., 354, and requires that the order appealed from must be affirmed, with costs.

Van Wyck and McCarthy, JJ., concur.


author: McCarthy, J.

text:
    Charles G. S. Reed, Resp’t, v. Henry C. Zimmerman, App’lt.

      (City Court of New York, General Term,

      Filed October 24, 1892.)

    Evidence—Book pboduced on demand.
    A book produced upon demand does not, upon failure of the party calling for the same to use it, become evidence against hii
    Appeal from judgment in favor of plaintiff.

      McMahon & Handley, for app’lt; H Hartman, for resp’t.
   McCarthy, J.

This is an appeal by the defendant from a judgment in an action for money loaned.

The cause came on for trial at trial term of this court, on the 16th day o£ December, 1891, and upon consent of the parties was referred to Ira 0. Miller, Esq., as referee to hear and determine.

The issues were, tried at great length before the referee, who rendered his report directing judgment as demanded in the complaint, and judgment was entered accordingly on May 26, 1892.

In the month of December, 1887, plaintiff, whose ■ business is that of a book-keeper and cashier, entered the employ of the defendant, then engaged in the retail flour business.

Plaintiff was employed upon the books, having almost exclusive charge of the deposits of cash and checks, and of payment by checks.

He assisted also as cash collector and salesman, and, after he had been in plaintiff’s employ about six months, began to negotiate temporary loans for, and to make-such loans personally to the defendant, to ' enable him to meet the financial exigencies of his business, and make payments when .they became due.

About the first of these transactions was in July, 1888, by a check of the plaintiff to the defendant for one thousand and one hundred and seventy-five dollars ($1,175.00). Then followed a long series of loans of this nature continuing down to the time when plaintiff left defendant’s employ. _

These transactions usually consisted in the plaintiff’s depositing^ to defendant’s credit in the West Side Bank his own personal check for whatever sum might be necessary for the defendant’s needs for the day. Against these deposits the defendant drew to meet current demands, andón the following morning gave plaintiff what cash might be on hand, and a check to the order of currency for the balance. These currency checks were cashed by plaintiff, and with the cash received from the defendant deposited in plaintiff’s bank to meet his check of the day previous.

These transactions are variously referred to as accommodation checks, currency checks, check items and check kiting, but both plaintiff and defendant agree that these transactions between them from day to day were balanced and adjusted at once, sometimes by cash, sometimes by check, sometimes by both.

In addition to these temporary loans, if loans they can be called, and altogether outside them, plaintiff loaned defendant three specific sums of money, upon definite terms of credit, as follows:

March 15, 1890................................ $464 00

May 5, 1890.................................. 800 00

June 24, 1890................................. 20 00

Total..................................... $1,284 00

Upon account of these loans plaintiff received payment of the amounts set forth in folios 13 to 15 on page 5, aggregating................................ 756 75

Leaving a balance of............. .......... $527 25

for which suit was brought

The above loans are unquestioned by defendant, and both parties agree that the sums credited on page 5 were paid to plaintiff on or about the dates named.

Defendant, however, claims to have made four other payments on account of these loans, all of which plaintiff denies, and which are set out in defendant’s statement, Exhibit 24.

These alleged payments are as follows:

July 11, 1890, by check......................... $135 00

“ 16, “ “ ............... $259 80

“ “ ............... 140 20

-- 400 00

L O. U. of Mallon.............................. 45 00

Discount on Capdeville notes..................... 25 00

Total............... $605 00

It is claimed by the defendant that if these credits had been allowed him, the plaintiff would be found indebted to the defendant. . The case was fully tried before the referee, and considerable evidence and exhibits presented, and was strongly contested on both sides.

It involves purely a question of fact.

The referee having had the witnesses, who were the principals, before him,was the best qualified to judge and determine their credibility, and how much weight should be given to their evidence.

No matter how inconsistent portions of the evidence may seem, we must consider the whole case.

We think from an examination that there is sufficient evidence to sustain the referee. The exceptions'were properly overruled.

There is no such rule that upon a -party being notified by the adverse party to produce a book or document, and it is produced on such case, that on the failure of the party calling for the same to use it, it becomes evidence against him.

The cases cited by the appellant in my judgment are authorities against him. See Carradine v. Hotchkiss, 120 N. Y., 611; 51 St. Rep., 951, and Smith v. Rentz, 131 N. Y., 174, 175; 42 St. Rep., 879.

For the reasons above stated the judgment should be affirmed., with costs.

Ehrlich, Ch. J., and Vah Wyck, J., concur.


author: Vah Wyck, J.

text:
    Max Lansburg, App’lt, v. Thomas Walsh et al., Resp’ts.

      (City Court of New York, General Term,

      Filed October 24, 1892.)

    PBINCIPAL AND AGENT—SALE IN NAME OB AGENT—ESTOPPEL.
    Defendants purchased timbers of one B., who sold the same on commission for one T., as he supposed, but' it appeared that T. was a clerk of plaintiff and acted for him in sending instructions for the sale, and the timber in fact belonged to plaintiff. Bills of lading in plaintiff's name were sent with each lot and received by defendants, who also received and used two lots after receiving a demand of payment from plaintiff. In an action for the value of such timber, J3"eM,.that defendants were estopped from denying that they bought and received them from plaintiff, and that a nonsuit was error.
    Appeal from’ judgment in favor of defendants, dismissing the-complaint

      Leo C. Rosenblatt, for app’lt; Michael J. Scanlan, for resp’ts.
   Vah Wyck, J.

At the close of plaintiff’s case, and before defendants had rested, the trial judge dismissed the complaint on the merits and ordered the exceptions to be heard in the first instance at general term. The defendants were not entitled to a dismissal on the merits and, therefore, what the court below granted will be deemed and reviewed as a nonsuit. This action is upon a quantum meruit for the sale and delivery of 125 pine timber piles by plaintiff to defendants. The defendants admit that they received ninety-nine of these piles and used them in the construction of certain docks then being built by them, but claim that they bought them by express contract and agreed price from one Benton, and not from plaintiff. The proof shows conclusively that the piles were owned by plaintiff. The fundamental principle of the law of personal property is that no person can be divested of his property without his own consent, and hence, plaintiff would be entitled to recover the reasonable value of these piles, unless an estoppel has been created by which he is deprived of his property by the act of Benton.

To create such an estoppel he must have clothed the person assuming to dispose of this timber with apparent title to it, or authority to dispose of it, and secondly, the person seeking to avail himself of the estoppel must have acted and parted with value on the faith of such apparent ownership or authority, so that he will be the loser if the appearances to which he trusted are not real. This second prerequisite to the creating of such estoppel is wanting in this case, for one of the defendants testifies that they have not paid anything to any one on account of these timbers in any way, except to pay the freight which plaintiff concedes should be ■credited to defendants as payment on account and Benton makes no claim for the purchase price. The testimony of Benton shows that he made the sale upon a commission of five per cent for one Thompson and so informed the defendants, and that he then supposed that Thompson was the principal because he had signed the letter of instructions, although the same was written on one of the plaintiff’s letter heads. The proof shows that this Thompson was a clerk in the plaintiff’s employment and acted in the matter for him; that these timbers were shipped by plaintiff to defendants in four lots on the following days, June 17, 24 and 28 and July 8 ; that a bill of lading of each lot was, at the time of shipment, mailed to and duly- received by the defendants; that in each and every of such bills the plaintiff was designated as consignor and the defendants as consignees; that defendants received these four lots of piles under these bills of lading and used the same in building their docks; and that the two last shipments were so received on July 19, and afterwards so used by them, although they had received plaintiff’s letter of July 5 in which, after referring to the shipments, he makes a.demand on them for payment for the piles already received by them. If the receipt by defendants of these four several bills of lading in which they were designated as consignes, and plaintiff as consignor did not fully apprise them of plaintiff’s ownership of the timber therein specified and receipted for and subsequently received and used by them as aforesaid, then they were certainly put upon their inquiry as to ownership and conditions of shipment, and whether the same was received and accepted by them upon consignment or sale and delivery from plaintiff.

At any rate they had certainly been fully informed, before they accepted and used the two last shipments of these piles, that tbs plaintiff by his letter of July 5 asserted ownership of the piles and claimed payment for the same, and that all of the piles had been forwarded to them by plaintiff. It would seem that defendants by the receipt of the bills of lading, accejctance of the timber thereunder and use of same by them, are estopped from denying that they bought and received the timber from plaintiff, and it is certain that they are so estopped as to the two lots received and used by them after receipt of the letter of July 5. The defendants assert that the letter from Benton and their acceptance of its terms makes an express agreement by him to sell at an agreed price, but assuming such to be the case, still Benton testifies that he sold as he supposed and as he informed defendants for Thompson and under supposed authority from him, while it is in proof that Thompson was the clerk of and acted for plaintiff. This proof would in law entitle plaintiff to recover from defendants on the contract the agreed price, for the established rule is that where a contract is by paroi or in writing and not under seal, in the name of the agent and within his authority, the principal can enforce the same and is liable thereon; but a different rule prevails as to sealed instruments. Nicholl v. Burke. 78 N. Y., 580. The only proof in this case as to the value of the timber so delivered is that the reasonable value thereof is exactly the same as the price fixed in the alleged Benton contract. Neither Thompson nor Benton make any claim to the timber or the agreed price or reasonable value thereof, and the latter says he sold it as a broker, while it is in proof that the former was clerk of and acted for plaintiff, whereas plaintiff testifies that he owned and shipped and billed the same as his own property, and defendants admit that they have received and used for dock building the four lots of piles and have not paid any one for them except the freight, and that no one seeks payment from them for the same except plaintiff. The nonsuit was improperly granted and plaintiff is entitled to and must be granted a new trial, with costs to abide the event.

Ehrlich, Ch. J., and McCarthy, J., concur.


author: Van Wyck, J.

text:
    Henry Rafalsky et al., Resp’ts, v. Samuel C. Boehm, App’lt.

      (City Court of New York, General Term

      Filed October 24, 1892.)

    Bill of particulars—Contract.
    Where the answer in an action for work and materials done and furnished at defendant’s request alleges that plaintiff did and performed for defendant certain labor and furnished certain materials, hut that part of the same was not performed and furnished at his request, and was different from the work he had requested them to do, it is a proper exercise of discretion to order a hill of particulars of such defense.
    Appeal by defendant from order directing him to furnish bill of particulars.

      Eugene Cohn, for resp’ts; Jeroloman & Arrowsmith, for app’lt.
   Van Wyck, J.

The complaint is on a quantum meruit for work done and materials furnished to defendant, and at his request. The plaintiffs furnished a bill of particulars of their claim and thereafter, and after service of the answer, moved for a bill of particulars of part of defendant’s defenses, which he was directed to furnish by the order from which this appeal is taken.

The appellant’s contention is, that the answer is a general denial, and, though the defendant has put his denial of performance in a somewhat more specific form than was necessary, the plaintiffs cannot avoid the obligation to furnish proof to establish their right to recover,” and hence that he was improperly ordered to furnish a bill of particulars of his alleged defense. However, his answer does not contain a general denial, and contains no specific denial except as to the reasonable worth of the work and materials, and therefore the plaintiffs would, upon the trial, be called upon to prove only the value of the items of work and materials specified in their bill of particulars, and need not prove that the same were performed and furnished for or requested by defendant.

The order appealed from required the defendant to furnish a bill of particulars of the defense set up or attempted to be set up in the second paragraph of his answer, which “ alleges that the plaintiffs did and performed for defendant certain labor and furnished certain materials,” but that part of the same was not performed and furnished at his request and was different from the work which he had requested them to do. There is not, in terms, an allegation that the certain labor and materials are the same labor and materials mentioned in the complaint or any part thereof, but assuming-that inferentially there is, still this plea, if not insufficient and frivolous, is at best too indefinite and uncertain to inform plaintiffs as to what items of labor and material alleged in the complaint and specified in their bill of particulars is to be disputed by defendant on the trial, and to this information they certainly are entitled.

It may be that plaintiffs could have requested and secured greater relief and assailed this plea as insufficient and frivolous or had it made more definite and certain. However they have only asked for a bill of particulars which shall specify whether the work and materials mentioned in this paragraph of the answer are the same work and materials referred to in the cómplaint or any part thereof, and if so, what, part and what part thereof were not performed and furnished at his request, etc. If their motion had taken another form, as suggested, it is true that they might have so forced the desired information, but that cannot be good reason for reversing an order which rests in the sound discretion of the court by § 531 of the Code, which says, “ the court may, in any case, direct a bill of particulars,” and which has often been exercised in extraordinary and celebrated cases and sustained by the court of appeals. Tilton v. Beecher, 59 N.Y., 176; Dwight v. Germania Insurance Co., 84 id., 493; and Cunard v. Francklyn, 111 id., 511; 19 St. Rep., 641.

The only limit to the exercise of this power seems to be, do the moving papers disclose such a condition of affairs as will force the conclusion that a bill of particulars is necessary to enable the moving party to safely meet his adversary at trial. The exercise of this power has seldom been disturbed on appeal, while the i-cf usai to exercise it has often met reversal. The bill of particulars, as to the second paragraph of the answer was properly ordered, and so too as to the fourth paragraph. Murray v. Maybie, 28 St. Rep., 308.

The order appealed from is affirmed, with ten dollars costs.

Ehrlich, Ch. J., and McCarthy, J., concur.


text:
    Louis M. Howland, Resp’t, v. De Witt C. Bates et al., App’lts.

      (City Court of New York, General Term,

      Filed October 24, 1892.)

    Bells and notes—Defense.
    The fact that defendants, who admit making and endorsing the note in suit in blank, gave it to a corporation and not to the plaintiff, is no defense to an action thereon where it appears that the receiver of such corporation renounces all claim thereto and plaintiff gives evidence to show that he is the owner thereof for value and produces the note on the trial.
    Appeal from judgment in favor of plaintiff, entered upon verdict directed by the court.

      Thomas H. Wagstaff, Jr., for app’lts; Olin, Rives & Montgomery, for resp’t.
   Van Wyck, J.

This action is upon a promissory note made by defendants, as they admit, for valuable consideration, payable to their own order and endorsed by them, but they alleged that the same was by them delivered to a certain corporation and not to plaintiff, and the receiver of such corporation renounces all title to or claim in the same, while the plaintiff gives evidence which clearly shows that he is the owner and holder of the same for value, and there seems no doubt but that he is, and whether he secured the note directly from defendants or from the corporation to which they contend that they delivered it for value can make no difference to defendants, for plaintiff produced the note on the trial and the same was marked in evidence and bore their endorsement in blank, and hence would pass by delivery to any one. Upon the record it is certain that neither the corporation nor its receiver could now maintain an action against the defendants upon the note. At the close of the testimony both parties requested the court to direct a verdict and neither requested to be allowed to go to the jury upon any question, and thus the court became the trier of the facts as well as of the law, and his direction of judgment for plaintiff is supported by the evidence and was not against the weight of evidence.

The judgment is to be affirmed, with costs.

Ehrlich, Ch. J., concurs.


author: Collier, S.

text:
    In the Matter of the Judicial Settlement of the Estate of John Snyder, Deceased.

      (Surrogates Court, Columbia County,

      Filed November 28, 1891.)

    1. Will—Construction.
    Testator, by Ms will, made a complete division of Ms property. By a codicil he gave to his wife and two daughters certain real and personal property in trust to continue his business for three years from his death, or, in their discretion, for five years. He gave authority to use part of the trust fund to pay the specific legacies, gave instructions as to the management of the business, and for distribution at the termination of the trust, and then authorized his wife “to collect all my interest money and rentals of my property during her lifetime, or until the estate is finally settled, and apply the same to her own use.” The personal estate not embraced in the trust was insufficient to pay the legacies. Held, that the last provision of the codicil referred to the income and rentals of the trust estate, and did not authorize the widow to take the interest and rentals of the estate not placed in trust.
    3. Same—Trust.
    The trust attempted to be created by the codicil was void, because limited by a period of years, and not upon lives.

      Judicial settlement of the accounts of the executrices and executors under the last will and testament of John Snyder, deceased.

      G. S. Collier, for Mercy Snyder, Lillie E. Grillett and Jennie A. Lent, executrices, and James M. Grillett, executor, and Mercy Snyder, as widow of deceased; A. Frank B. Chace, for trustees; E. R. Harder, for James E. Snyder, one of the executors, and a legatee and devisee under the will of said deceased; Burgess Speed, special guardian for infant legatees.
   Collier, S.

The settlement of the accounts in this matter involves the construction of the last will and testament, and codicil thereto, of the said deceased. A proper and legal construction must first he determined upon and. settled before any decree can be made for settlement

John Snyder died on or about the 4th day of July, 1889. He left a last will and testament, which bears date December 80, 1885. He made and executed a codicil to said will, which bears date the 12th day of May, 1889. The will and codicil were proven and admitted to probate by the surrogate on the 11th day of July, 1889, and letters testamentary thereon were issued to Mercy Snyder, Lillie E. Grillett, Jennie A. Lent, James M. Grillett and James E. Snyder, the executrices and executors therein nominated and appointed. By the will of said deceased, dated December 80, 1885, the testator, after making provision for a monument, by the third clause of said will gave and bequeathed to his wife, Mercy Snyder, the sum of $12,000 in cash, and devised to her absolutely his private residence in Yalatie, in the town of Kinder-hook, and all the lands belonging thereto, containing about eight acres, and also all the personal property attached thereto, such as household furniture, carpets, beds and bedding, horses, carriages, sleighs, robes, harness, and all the personal property of every description in and about his private residence, and this provision for his wife, in and by the fourth clause of said will, is declared to be in lieu of her right of dower.

By the fifth, sixth and seventh clauses of his will he gives and bequeaths to each of his three children the sum of $8,000, and by the eighth clause states that his children and his wife are to have the above sums in cash as soon as practical after his decease. By the ninth clause. of his will the balance of his personal property and real estate is to be appraised, and he directs that it shall be divided equally between his three children, and by the tenth clause he gives to each of his grandchildren $400, to he taken out of the real estate before it is divided.

In this plain and simple manner he disposed of his whole estate by his will. But some time after making his will, and on May 12, 1889, the testator made a codicil to said will, and after reciting the fact of the making of said will, and the fact that in and by it he had given and bequeathed the balance of his personal property and real estate as stated in the ninth clause of said will, and directing that the codicil should be taken as a part thereof, he proceeds in substance as follows: “ To order and declare, give, devise and bequeath to his wife, Mercy Snyder, and his daughters, Lillie E. Gillett and Jennie A. Snyder (now Jennie A. Lent), in trust for the uses and purposes hereinafter named,” certain real estate, describing it, then in use in his business of manufacture and sale of tin ware, rags, junk, iron, glass, etc., and certain other real estate, describing or designating it, also gives, devises and bequeaths to his said trustees, in trust, as aforesaid, for the uses hereinafter mentioned, all his horses, carts, wagons, harness, sleighs, goods, chattels, credits and merchandise, which then was, or shall be in use as a part of the business conducted by him, and also that of the moneys on deposit to his credit, the sum of $3,000 be taken by his trustee or trustees, and used by her or them for the uses and purposes hereinafter mentioned, and as a part of the trust created by this codicil; and directs his trustee or trustees to use the property mentioned for the purpose of carrying on the business of the manufacture and sale of tin ware, rags, junk, iron, glass, etc., as then conducted by him, for the term of three years from and after his death, or, if in the discretion of his trustees it may be deemed advisable for the best interests of his estate, such business and such trust may be continued until the expiration of five years after his decease; and directs that his wife, Mercy Snyder (one of said trustees named), shall act as sole trustee, with power to sign all checks until the termination of the trust, or until her decease, but in the event of her death before the termination of such trust, then, and in that event, his daughters, (the other trustees named), shall act as trustees until the termination thereof, and directs and orders that the property therein mentioned should, upon his decease, be set apart from the residue of his estate for the purpose of carrying on such trust, and his trustees are directed to use no part of his property other than the property therein devised in connection with such business. That all other property of which he might die seized or possessed should be kept separate and apart from such trust estate, and should vest upon his decease in the legatees named in his said will and testament as therein provided.

_ Upon the termination of the trust, the trust estate should be disposed of for the payment of any unpaid legacies given by his last will and testament, and the residue and remainder be divided equally between his son, James E. Snyder, and his daughters Lillie E. Gillett and Jennie A. Snyder, now Jennie A. Lent.

And the testator in this same clause of the codicil directs his trustees, m their discretion, to use from his trust estate, before the termination of the trust, such sums of money as they may deem advisable for the payment of the specific legacies given by his will, and the said legacies for which there is not sufficient property outside of such trust estate to pay shall, in the option of the trustees, not be payable until the termination of the trust, and then, following in the same clause, directs his trustees to employ Thomas Garrigan as superintendent of the business created by the trust, and James M. Gillette as assistant, at certain salaries during the period of such trust. Directs that an inventory of the prop erty covered by the trust be made at least once each year, and delivered to his wife. And then, following right on, in this same clause the testator says: “ I further authorize and empower my said wife as aforesaid to collect all my interest money and rentals of my property during her lifetime or until the estate is finally settled, and apply the same to her own use.” Such now'are the provisions of the will and codicil which, taken together, stands as the last will and testament of said deceased.

By the account filed it appears that the. estate, outside of the property and money so given in trust, amounted to about the sum of $23,678.51, besides certain real estate not given in trust.

And it is claimed by the widow that under the will and codicil she is entitled to the whole income of the estate until the trust estate is finally settled.

And by James E. Snyder that she is only entitled to income” and rental until the estate in the hands of the executors should have been finally settled by law. The trustees claim that the widow is entitled to the income and rental of the property so placed in trust during her life, but not exceeding the time limited by the trust; all claiming under that clause in said codicil wherein he authorizes and empowers his wife to collect all of his interest moneys and rentals of his property during her lifetime or until the estate is finally settled and apply the same to her own use.

Now, leaving the' question of the validity of the trust out of question, in order to get at the intent and meaning of the clause, we must assume that the testator by his codicil intended to create a valid trust. What the intention of the testator was must be gathered from the will and codicil, and the language used should be so construed as to give effect to the intention of the testator as gathered from the whole will and codicil taken as one instrument

Now by the will the testator disposed of his whole estate, without any conditions or limitations, except that certain legacies given to his grandchildren were to be taken out of the real estate before it should be divided. At the time this codicil was made the testator had by his will devised to his wife, certain real estate and bequeathed to her $12,000, which he declared to be in lieu of dower, and to each of his three children $8,000, and that they were to have the same in cash as soon as practicable after his death. And but for this trust created by the codicil there would have been more than sufficient personal estate to pay all the legacies ; and by the ninth clause of his will he directed that the balance of his personal estate should be appraised and equally divided between his three children.

By the codicil he takes or, carves out of this real estate pertain parcels thereof, and takes out of his personal estate certain personal property and money, and gives, devises and bequeathes the same to his wife and two daughters (all living at the time of his decease), in trust for carrying on the business he, the testator, had during his lifetime successfully conducted. This appears to have been the sole purpose and aim of the testator, and his intention was that the balance of his personal estate should be applied in payment of the legacies to his wife and children as directed in and by his will, and that the balance of the real estate not placed in trust should go as directed by said will equally to his three children, and that the personal estate not placed in trust should, by his executrices and executors, be applied in the proper and legal course of administration to the payment of his debts and said legacies given by said will.

By the codicil he directs that the trust property shall be set apart from the residue of his estate, and that all other property of which he might die seized or possessed should be kept separate and apart and should vest upon his decease in the legatees named in his said will, as therein provided, clearly showing that he intended that the balance of his property not placed in trust should not be affected by the provisions of the codicil, but plainly indicating his intention that it should pass under'the will and be distributed under the provisions of said will, and this is further indicated by the further provisions of the codicil for the payment of unpaid legacies given by his will, and the discretionary power-given to the trustees to pay out of the trust estate such sums of money for the payment of such specific legacies given by his will for the payment of which there should not be sufficient property outside of such trust estate to pay the same.

It will be noticed that by the provisions of the codicil creating the trust, the testator, though naming three trustees, uses the language my beloved wife, Mercy Snyder, shall act as sole trustee herein, makes no provision for compensation for her or for the trustees for carrying on the business and makes no disposition of the income and rentals from the trust property, unless this clause in question, to wit:

“T further authorize and empower my wife aforesaid to collect all my interest moneys and rentals of my property during her life or until the estate is finally settled and apply the same to her own use ” refers to such trust income from the business to be carried on and the rentals of the real estate devised in trust, but not in direct use in carrying on the business. This codicil, though ratifying and confirming the provisions of his will as to all property not placed in trust, clearly relates to the creation, management and disposition of this trust estate, and this language above quoted, following the provisions for the management and .disposition of the trust estate, clearly seems to relate to the income and rentals from such trust estate. To say that under this clause the widow was entitled to the interest money and rentals of the estate not placed in trust" during her life or until the final settlement of the trust estate, would be entirely inconsistent with the provisions and directions of the will, ratified and confirmed as they are by the codicil The whole intention of the testator, as expressed in this codicil, is, that the personal estate not placed in trust should be applied to the payment of the legacies, given and bequeathed in and by his will, to his widow and three children, and in the manner directed by his will, and that each of his children and his wife, should have the sums given to them in cash as soon as practical after his death; that it should vest, as stated in the codicil, in the legatees named in his will upon his decease, as therein provided. And the provision also in said codicil for the payment of the legacies for which there should not be sufficient property outside of such trust estate to pay, clearly shows that the testator had no intention of tying up the estate not placed in trust till any final settlement of his estate, by any provision that his wife should collect all interest moneys and rentals during her life, or until the estate is finally settled, and apply the same to her own use. I am strongly of the opinion that it was intended to refer to and does refer to the income and rentals from the trust estate, and that his widow, Mrs. Snyder, would be entitled to the same if the trust was valid, and that the testator did not intend to give, and the language used should not be so construed as to give, the widow the interest money or any rental of any property outside of the trust estate, except that she would be entitled to interest on her legacy of $12,000, bequeathed to her by the will.

It appears from the account that there was some $18,787 in personal property and $3,000 in cash, besides certain real estate of considerable value, given and devised by the codicil in trust.

This is not accounted for by the executrices or executors, except in a general way by stating. that it was set apart, under the provisions of the will of said John Snyder, for continuing the business carried on by the testator at his decease. It is claimed that all this personal estate should be accounted for by the executors at this time and distribution of the same should now be made, for the reason that the trust created by the codicil is void. That there is an illegal suspension of the absolute ownership of the property so given in trust, as it is not limited upon "a life or upon two lives in being at the death of the testator, but upon a definite period of time. This question arises on this accounting and must be determined and settled before any proper disposition or distribution of the personal estate left by the testator at the time of his death can be properly made. For if the trust is void, then all of the personal estate of the deceased, including all. of the personal .property attempted to be given in trust, should now be accounted for, and distribution thereof made as directed by the will of said deceased.

By the terms of the codicil certain personal property amounting to about $18,787 and $3,000 in cash is given to Mercy Snyder, Lillie'E. Grillett and Jennie A. Snyder in trust, and he directs his trustee or trustee to use the property for the purpose of carrying on the business of the manufacture and sale of tin ware, rags, junlr, iron, glass, etc., as then conducted by the testator, for the term of three years from and after his decease, or if in the discretion of his trustees it might be deemed advisable for the best interest of his estate, such business and such trust may continue until the expiration of five years after his decease.

No provision is made for the termination of the trust short of three years from the day of the death of the testator, and after three years it is left discretionary with the trustees to continue it until the expiration of five years.. Clearly a trust is created by this codicil by which the possession of personal property and the legal estate therein would be vested in the trustees during the continuance of the trust, and the absolute ownership of personal property be suspended within the meaning of the statute. The trust is absolutely and unconditionally for a period of three years, and is not founded on lives. Not upon the life'of his widow, or any one, nor upon the lives of any two persons in being at the time of the death of the testator. The codicil creates but one trust, and that is for a definite period, three years. No part can be cut off, and no part disregarded for the purpose of rendering the trust valid for any purpose, or for the life of the widow, or any other person. Haynes v. Sherman, 117 N. Y., 433; 27 St. Rep., 254; Schettler v. Smith, 41 N. Y., 328; Underwood v. Curtis, 40 St. Rep., 255. As is said by Coffin, surrogate, in Will of Underhill, 6 Dem., at page 469 : “To render such suspension valid, it must be limited on a life or lives. It is difficult to conceive how a limitation of three years may not be longer than until the termination of the lives of any two beings in existence at the death of the testator. To render such future estates valid, they must be so limited that, in every possible contingency, they will absolutely terminate at such period, or they will be held void’.’ It must now be considered as settled by the authorities of this state that a trust of real or personal property for a definite term of years, not founded on lives, will not satisfy the statute, and is void.

The trust created by this codicil, in so far as it relates to the personal estate of the testator, must be and is declared void, and the personal estate so attempted to be placed in trust must be disposed of and accounted for by the executors and executrices under the will of said testator. And as such personal estate has been used and employed in the business carried on by the testator at the time of his decease, all income and profit, if any, should be accounted for, in order that a proper distribution thereof may be made. A decree should now be made for distribution of the money and property mentioned and accounted for in and by the "account filed, and for the application thereof (after the proper deductions for commissions and payments of the costs of this accounting up to this date), to the payment of the legacies given in and by the will of said deceased, to the widow and three children of the deceased, and upon the entry of the said decree this matter should be adjourned to some future time, and the executrices and executors ordered and directed to proceed with due diligence in the meantime and dispose of the merchandise undisposed of, personal property so attempted to be placed in trust, except said $3,000 cash, which should be included in the present disposition.


author: Pryor, J.

text:
    Fritz Huerzeler, Resp’t. v. The Central Cross-Town Railroad Company, App’lt.

      (New York Common Pleas, General Term,

      Filed November 7, 1892.)

    1. Railroad—Street—Negligence—Evidence—Damages.
    In an action to recover for the death of a child five years old, by the negligence of a horse railway company, it appeared that defendant’s car was running at twice the speed allowed by law; that the driver saw the child crossing the street when thirty-five feet away, and neither slackened speed or applied the brake; that if the brake had been applied it would have stopped the car before striking the child; that the child heard the driver’s cry, and started to run, but that the horse struck her within "two seconds thereafter. Held, that the evidence was sufficient to warrant a verdict for plaintiff, and that a verdict for $2,000 damages was not excessive.

      2, Same-Change to «toby.
    Such case was tried upon the postulate that the child was non sui juris, but the court charged that “ a recovery can be had if the negligence of the defendant was the sole cause of the injury, and no negligence of the child contributed to it, ” and that * * if the jury find that the deceased’s own negligence contributed to her death, they must find for the defendant.” Held, that upon this instruction the verdict for the plaintiff necessarily negatived the fact of the child’s contributory negligence, and hence the parents’ negligence, if any, was ineffectual to defeat a recovery.
    3. Appeal—Review of bequests to chabge—Exception must be specific.
    To raise on appeal any question upon the ruling of the trial court as to' requests to charge, the exception must be specific, and point out the particular request to which it is intended to apply.
    Appeal from judgment on verdict and order denying new trial. Action by administrator for death of his daughter by negligence of defendant. The deceased child was five years old, and bright and healthy.
    The verdict was for $2,000.

      Henry Schmitt and Charles H. Lellman, Jr., for resp’t; Robert Sewell, for app’lt.
   Pryor, J.

The case was tried upon the postulate that the child was non sui juris. Nevertheless the learned trial judge charged that a recovery can be had if the negligence of the defendant was the sole cause of the injury, and no negligence of the child contributed to it; ” and, more explicitly still, that “if the jury find that the deceased’s own negligence contributed to her death, they must find for the defendant. ” Upon this instruction the verdict for the plaintiff necessarily negatives the fact of the child’s contributory negligence; and hence, the parent’s negligence, if any, was ineffectual to defeat a recovery. McGarry v. Loomis, 63 N. Y., 104.

Supposing, however, the imputed negligence of thp parent in the case, it was not negligence per se to suffer the child to play in the street, Kunz v. The City of Troy, 104 N. Y., 344; 5 St. Rep., 642; Birkett v. Ice Co., 110 N. Y., 504; 18 St. Rep., 130, and the verdict is conclusive of the question in favor of the plaintiff.

The inquiry then is, whether the evidence suffices to authorize the inference of defendant’s negligence and the child’s non-negligence.

. Evidence that the car was running as fast as twelve miles' an hour, twice the rate allowed by law ; that the driver saw the child thirty-five feet away, and neither slackened speed . nor applied brake; that if he had applied the Brake he would have stopped the car before striking the child, is surely plentiful proof of" defendant’s negligence.

As to the child’s non-negligence the case is equally clear. She had the right to pass over the street elsewhere than at a crossing, Moebus v. Herrman, 108 N. Y., 349 ; 13 St. Rep., 648; while so passing she heard the cry of the driver, and “ started to .run, and as she started to run the car carne so fast that the horse and car struck her a second and a half or two seconds from the time the driver hollered.” Upon this statement of the occurrence the jury; were well warranted in exonerating the child from the imputation of negligence.

But, the mere negligence of a plaintiff is not enough to defeat his recovery; his negligence must be a contributing cause of the injury. Assuming, then, the negligence of the child, it is still apparent that the negligence of the defendant was the sole cause of the injury; for, after discovering the peril of the child, the driver had ample time and opportunity, by ordinary care, to avert the impending catastrophe. -- Hence, it was the lack of that care on his part alone which occasioned the casualty, the negligence of the child, if any, was not a contributing agency. Grand Trunk R. Co. v. Ives, 144 U. S., 409; 1 Sher. & Red. on Neg., §§ 99, 100, notes.

The evidence was ample to authorize the verdict.

Appellant contends that though the verdict be valid the damages are excessive; but the clear weight of authority is to the contrary of the proposition. Birkett v. Knickerbocker Ice Co., 110 N. Y., 504; 18 St. Rep., 130; Ihl v. R. R. Co., 47 N. Y., 317; O'Mara v. R. R. Co., 38 id., 445 ; Oldfield v. R. R. Co., 14 id., 310; Bierbauer v. R. R. Co., 15 Hun, 559; 77 N. Y., 588; Houghkirk v. R. R. Co., 92 id., 219 (reversal on another point).

Appellant imputes error to the charge and refusal to charge; but the point is not available upon an “ exception to the granting of the requests on the other side and the refusal to charge those of mine that were not charged.” Read v. Nicholas, 118 N. Y., 224; 28 St. Rep., 867; Newall v. Bartlett, 114 N. Y., 399; 23 St. Rep., 732; Smedis v. R. R. Co., 88 N. Y., 14.

The exceptions to evidence taken below are not pressed upon the appeal.

On review of the record we perceive no error available to appellant ; and upon the evidence we are entirely satisfied with the verdict.

Judgment and order affirmed, with costs.

Bookstaver and Bischoff, JJ., concur.