author: Earl, J.

text:
    W. Howard Gilder, Chairman, Resp’t, v. John H. Davis et al., App’lts.

      (Court of Appeals,

      Filed March 21, 1893.)

    1. Brokers — Commissions—Option to purchase.
    Where a broker has obtained an optional contract sanctioned by his employer, he should at least receive his commissions upon the sum paid and forfeited by the purchaser
    2. Same.
    Defendants, a firm of real estate brokers obtained purchasers in New York for plaintiff’s real estate in Kansas, they paying down $10,000 and agreeing to pay $115,000 more in four months or forfeit the deposit. On defendants reporting the sale, plaintiff wrote them that the understanding was that there should be no commission paid for the sale until the final purchase money was paid over,and defendants answered that the understanding that the $6,250 commission due should not be paid until the final purchase money was paid in, was satisfactory to them. The purchasers did not take the property and forfeited the $10,000. Held, that defendants were entitled to $500 as their commissions on the $10,000 paid.
    Appeal from judgment of the supreme court, general term, first department, reversing judgment entered upon dismissal of complaint at circuit.

      Edward T. Bartlett, for app’lts; W. M. Safford, for resp’t.

       Reversing 45 St. Rep., 690.

   Earl, J.

The general rule is that when a broker, employed to negotiate a -sale of real estate, brings to his employer a responsible purchaser willing to buy upon the terms prescribed he has earned his commissions. Mooney v. Elder, 56 N. Y., 238; Sibbald v. Iron Co., 83 id., 378; Duclos v. Cunningham, 102 id., 678; 2 St. Rep., 13 ; Kalley v. Baker, 132 N. Y., 1; 42 St. Rep., 762. Where the contract of sale is executed between the employer and the purchaser, the right of the broker to his commissions does not depend upon the performance of the contract by the purchaser. If from a defect in the title of the vendor, or a refusal to consummate the contract on the part of the purchaser for any reason in no way attributable to the broker, the sale falls through, nevertheless the broker is entitled to his commissions, for the simple reason that he has performed his contract. If he negotiates a contract different from that prescribed by his employer, and the employer subsequently ratifies it, and thus a contract is finally made which is satisfactory to him, then the broker has earned his commission. Nesbitt v. Helser, 49 Mo., 383; Coleman's Ex'rs v. Meade, 13 Bush., (Ky.), 358. These rules apply where the broker has acted in good faith, and the contract made is either signed by the employer himself or is approved or ratified by him. The contract for the sale of real estate may provide for the payment of a sum of money as liquidated damages by the party failing to perform, :and thus the contract may, in a certain Sense, be optional with either party; yet, if the employer signs or approves the contract, I see no reason to doubt that in such a case, although in the end 'the purchaser may not take a conveyance of the real estate, preferring to pay the liquidated damages, the broker has earned his •commissions. If, in such a case, the employer wishes to be exempt "from the payment of commissions, or to confine the commissions to the amount of the liquidated damages paid in lieu of performance, he should stipulate for such exemption in the contract with his broker. The commissions are the compensation for the services of the broker, and when the services stipulated for have been rendered he should be entitled to his commissions.

Now, what are the facts of this case? The plaintiff and other persons associated with him owned certain real estate in the state of Kansas which he desired to sell, and he addressed a letter to the defendants, who were real estate brokers in the city of New York, in which he authorized them to negotiate for the sale of the property for not less than $125,000, in cash, stating that he understood that they were to receive a commission on such sale of five per cent. In pursuance of that authority the defendants commenced their efforts to negotiate a sale of the property, and finally entered into a contract for the sale thereof to Gould & Co. for the price of $125,000, cash, upon the following terms :

“ The terms of the purchase are ten thousand dollars ($10,000), to be paid to bind the transaction, and the remaining one hundred and fifteen thousand dollars ($115,000) to be paid as soon as a company, which Messrs. Gould, McGhee and associates are now forming, shall be incorporated, and a sufficient amount of the preferred stock of said company subscribed and paid for to meet said payment Should the said Gilder and his associates be unable to give a good and sufficient title to the said Kansas City property, and to turn over the same free of all incumbrances, the said Gould and his associates shall be relieved of all obligation to purchase, and the said ten thousand dollars ($10,000) deposit shall be returned to them. Should the title to said property be found good and sufficient, but the said Gould and his associates fail to organize their company, and to make the one hundred and fifteen thousand dollars ($115,000) payment, hereinbefore referred to, by or within four months from this date — namely, the 8th day of May, 1890 — then the said deposit of ten thousand dollars ($10,000) shall be forfeited and paid over to the said Gilder, as the representative of the owners of the said Kansas City property; but no further liability of any kind whatsoever shall be incurred by the said Gould and his associates over and above the said ten thousand dollars ($10,000).”

Gould & Co. immediately paid the $10,000 to the defendants, and on the same day they reported the contract to the plaintiff, who at once approved of and confirmed the same. On the same day the plaintiff addressed a letter to the defendants, in which he stated as follows : “Referring to my letter of confirmation of this date, I beg to express to you my understanding that there shall be no commission paid for the sale of the Kansas City property until the final purchase money has been paidover,inasmuch as otherwise I should be really granting a four months option upon this property for the sum of $3,750.” To that the defendants answered by letter, as follows: “ Replying to your favor of even date, we beg to say that the condition you make, that the $6,250 commission due us on sale of the Kansas City Slaughtering plant and property shall not be paid until the final purchase money is paid in, is entirely satisfactory and hereby agreed to by us.” The purchasers, Gould & Co., did not take the property, and forfeited the $10,000. The plaintiff then demanded the whole of the $10,000 from the defendants, and they claimed that they were„entitled to the commission on that sum, and refused to pay him more than $9,500. He accepted that sum without prejudice to the rights of either party, and afterwards commenced this action to recover the balance, $500. The defendants, in their answer, claimed to retain the $500 as their commissions on the $10,000. At the trial term it was held that they were entitled to the $500, and the judge directed a verdict in their favor dismissing the complaint. Upon appeal by the plaintiff to the general term, the judgment directed at the special term was reversed, and a new trial ordered.

We are now to determine upon the facts hereinbefore stated, about which there is no dispute, whether or not the defendants were entitled to commissions as claimed by them.

While it is not necessary to be determined upon this appeal, it is by no means clear that when the contract was closed between the plaintiff and Gould & Co., the defendants were not entitled to their full commissions. They had then negotiated a contract of sale which was satisfactory to the plaintiff and which was approved and confirmed by him. If there had been no further agreement between the parties as to the commissions it might be claimed, at least with some plausibility, by the defendants that they were entitled to their commissions as they would have been if they had negotiated a contract containing a stipulation for the payment of liquidated damages in case of failure of performance by either party. And so apparently the plaintiff understood his obligation to them, and, therefore, he exacted an agreement that they should not have their full commissions unless the property was finally taken and paid for by the purchasers. It is not a fair construction of the two letters embodying the agreement that the defendants were to have no commission whatever unless the purchasers took and paid for the property. It cannot be supposed that the parties meant to agree that the plaintiff should receive in consequence of the services of the defendants $10,000 without any payment or allowance for such services. We think the fair interpretation of the language of the two letters is simply that the full commissions were not to be paid unless the property was finally taken by the purchasers, leaving the defendants to whatever rights they had to commissions upon the $10,000. The letters will bear that construction, and, in furtherance of what seems to be fair dealing, they should be so construed. We think it is a just view to take of such a situation where a broker has obtained an optional contract sanctioned by his employer, that he should at least receive his commissions upon the sum paid and forfeited by the purchaser. We have found no case where the precise point here involved was decided. A case nearest like this is Pierce v. Powell, 57 111., 323.

We are, therefore, of opinion that the order of the general term should be reversed, and the judgment of the trial term affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Barnard, P. J.

license: Public Domain

text:
    Elizabeth O Rourke, Resp’t, v. John De Graw et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed February 13, 1893.)

    1. Civil damage act — Liability of landlord.
    The liability of the landlord under the civil damage act of 1873 is to be determined by his knowledge at the time the lease was given.
    2. Same.
    Where the premises were leased for a restaurant, and the landlord then stated that he would not rent the place to sell liquor and beer in, and the lease was taken with that understanding, he cannot be held liable under the statute.
    Appeal from judgment in favor of plaintiff.
    Action under the civil damage act to recover for loss of support by reason of the sale to plaintiff’s husband of intoxicating liquors, Which caused him to neglect his work and finally resulted in his death.

      W. F. O'Neill, for app’lts ; W. J. Groo, for resp’t.
   Barnard, P. J.

A recovery was had in the case against the defendant DeGraw for creating an intoxication in whole or part which resulted in the death of Patrick O’Rourke in August, 1891. The defendant Piatt was made a defendant as the owner of the premises where the intoxicating liquors were sold. The allegations against him being that “ he rented said building and premises to the defendant DeGraw and permitted him to occupy and use the same during all of said term as a place for the sale of intoxicating liquors with the full knowledge that they were to be and were being so used.” The court of appeals, in a recent case, has held that the landlord’s liability under chap. 646, Laws of 1873, derived from the words creating the liability “ and having knowledge that intoxicating liquors are to be sold there,” is to be determined by his knowledge at the time the lease was given, and that he could only be made liable when it was shown that she knew when the lease was executed that the premises were to be used for the sale of liquor. Hall v. Germain, 131 N. Y., 536; 43 St. Rep., 916.

Under this rule there was a complete failure of proof against the landlord. DeGraw, the tenant, was called by the plaintiff, and testified that the premises were rented by him from Piatt “ for a restaurant,” and Piatt “ said he would not rent his place to sell liquor and beer in,” and that he took the premises with that understanding.

The case against the landlord stood solely on this proof when the plaintiff rested, and the case against him should have been then dismissed. It should have been also dismissed at the close of the evidence. It then appeared that the lease was given upon the condition that it was not to be used to sell strong drink in. That, although the landlord went monthly to collect his rent, he never saw any sale of liquor there. That the bar and its fixtures came from a former tenant That the beer pump was not used, but the beer sold was drawn from a faucet under the bar so as to deceive the owner. That the bar appearances would fit the restaurant as well as the ordinary liquor business, and the lease was expressly given upon the assurance that the bar would be kept to sell small and birch beer and cigars. If a liability would be established by knowledge subsequent to the lease that it was being violated, there was an entire absence of proof to show that.

The judgment against Piatt should be reversed, and a new trial granted, costs to abide event

Dykman and Pratt, JJ., concur.


author: Dykman, J.

text:
    Thomas Farmer, Resp’t, v. The National Life Association of Hartford, Conn., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 13, 1893.)

    Service — Foreign insurance companies.
    A service upon a foreign insurance company by mailing the summons to the superintendent of the insurance department, who gives an admission of service, is valid and sufficient.
    Appeal from order denying motion to set aside service of a summons.

      Roger Foster, for app’lt; James P. Judge, for resp’t
   Dykman, J.

This is an appeal from an order denying. a motion to set aside the service of the summons in this action.

The summons was sent to the superintendent of the insurance department at Albany, and he gave an admission of due service of the same, in pursuance of a power of attorney which had been executed to him for that purpose, under the provisions of the statute requiring the same.

Our conclusion is that the service was valid and sufficient, and the order should be affirmed, with ten dollars costs and disbursements.

Barnard, P. J., and Pratt, J., concur.


author: Dykman, J. Pratt, J.

text:
    James Donovan, Resp’t, v. The Long Island Railroad Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 13, 1893.)

    Negligence — Railroad crossings.
    Plaintiff was injured on a winter evening at a crossing in the city by an engine which was running without a headlight or signals. It had no train and made little noise. Plaintiff testified that he looked and listened before attempting to cross, but saw no light and heard no bell. Held, that there was sufficient evidence to carry the questions of negligence to the jury, and that their verdict in favor of plaintiff would not be disturbed.
    Appeal from judgment in favor of plaintiff, entered on a verdict, and from order denying motion for a new trial on the minutes.

      E. B. Hinsdale, for app’lt; J. Stewart Ross, for resp’t.
   Dykman, J.

This is an appeal from a judgment entered upon the verdict of a jury, and from an order denying a motion for a new trial upon the minutes of the court

The action is for negligence. The plaintiff was struck and injured by one of the engines of the defendant while he was crossing the tracks of the railroad in Atlantic Avenue in the city of Brooklyn, for the purpose of taking a train on that road going westward towards the city of Brooklyn.

The appellant seeks to reverse the judgment upon the ground of contributory negligence of the plaintiff. The contention being that the testimony not only failed to show the absence of negligence on the part of the plaintiff, but did show the presence of such negligence.

In this case, as in many others of a similar character, the appellate tribunal is powerless. There is some evidence of care on the part of the plaintiff. He testified that before going upon the track he looked to see whether there was any engine approaching, and was very particular to look and see if he saw any headlight, and that he saw no light and heard no bell. That he looked up and down both and saw no light

That testimony was sufficient to carry the case to the jury upon that question and if it commanded belief it manifested care.

We cannot substitute our judgment for that of the jury.

We cannot, therefore, interfere with the verdict and the judgment and order denying the motion for a new trial should be affirmed, with costs.

Pratt, J.

As plaintiff has recovered the verdict, below, we must in discussing the appeal regard the testimony in the light most favorable to the plaintiff. That requires us to believe that defendant’s engine was propelled through a city street two hours after sundown, in the winter without a head light and without ringing a bell. On those facts the jury bad a right to find the defendant guilty of negligence.

The principal reliance of defendant on this appeal is upon the argument that plaintiff must, by the nature of the case, have been guilty of contributory negligence; that is to say, he would surely have seen or heard the engine had he exercised proper care.

The plaintiff testified that he carefully looked and listened and did not hear or see the engine, and he is corroborated by a witness who crossed with him at the same time and place, who also looked and listened and heard nothing.

The defendants ask us to disregard this evidence on the ground that it must be falsa It is plain that the jury must have given it credit.

How far it is possible to see a moving engine in a winter night would depend something on the degree of darkness, something on the rapidity of motion, somewhat on the acuteness of vision of the observer.

There being no train attached to the engine the ordinary roar of a train would be absent

Ordinarily trains moving through the streets in the night time give warning by head light and bell, and by the reverberation produced by a heavy train of cars. As these were wanting in the present case, and as the engines used for the rapid trains are extremely light and comparatively noiseless, the jury may have thought , the plaintiff’s testimony entirely credible.

It is said that as the engineer saw the plaintiff 200 feet away, the plaintiff should have seen the engine at an equal distance.

As the plaintiff came out'of a lighted cigar store and also into the illumination caused by the gas light at the crossing, he would doubtless be easily visible to persons 200 feet away in the darkness. But when his gaze was directed into the darkness it would not follow that he could see as far.

We are not able to say the jury were in error.

Judgment affirmed, with costs.

Barnard, P. J., concurs.


text:
    William Larder, App’lt, v. Elihu J. Granger, Impl’d, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 13, 1893.)

    Reference — Partition.
    A reference of the issues should not be ordered in an action of partition, as the issues in such an action are triable by jury if either party so-desires.
    Appeal from order of reference
    Action for partition. After joinder of issues defendant Granger moved for an order of reference to take and state the accounts of the parties upon all the pleadings and proceedings, which motion was opposed by the plaintiff.

      Wm. North, for app’lt; E. J. Granger (E. R. Vollmer, of counsel), for resp’t; E. E. Sprague, for deft., Title Guarantee & Trust Co.
   Dykman, J.

This is an appeal from an order of reference, and we think the order is erroneous.

The action is for the partition of real property, and the issue formed by the pleadings is triable by jury if either party so desires.

The order should be reversed, with ten dollars costs and disbursements.

Barnard, P. J., concurs; Pratt, J., not sitting.


text:
    The People, Resp’ts, v. George Calvert, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 13, 1893.)

    Burglary — Apartment house.
    Defendant was indicted for burglariously entering the house of one Kate Higgins. Mrs. Higgins occupied the second floor of an apartment house with her husband. While she was alone therein, she heard a noise, and found defendant in the lower hall, and he left on seeing her. A few days later he called and rang the bell, and she saw him take a paper from his pocket. On being arrested two days later, there was found on him a key which fitted the front door of this house, and a letter telling Mrs. Higgins that her husband was hurt, and asking her to come to the hospital. Meld, that these facts justified a conviction.
    Appeal from judgment entered on conviction of defendant of the crime of burglary in the second degree. •<

      William J. Courtney, for app’lt; James W. Ridgway (John F. Clarke, of counsel), for resp’ts.
   Barnard, P. J.

The defendant was indicted for a burglary in breaking and entering the dwelling house of one Kate Higgins, on the 24th of March, 1892. The proof shows that Kate Higgins lived with her husband at No. 60 Heywood street, Brooklyn.

She lived in an apartment house in which there were three separate apartments, but only one was occupied by her on the second floor.

On the 24th of March, 1892, the lower hall door was locked ; Mrs. Higgins heard a noise in the lower hall. She opened her door from the top of the stairs and saw the defendant in the hall.

He immediately went out upon seeing her. This was at midday, and Mrs. Higgins was alone in the house. At about the same hour on the 2d of April, 1892, he again went to the house and rang the bell. Mrs. Higgins did not go down to answer the bell, but stood at the window and saw the defendant take a piece of paper from his pocket

The defendant was arrested on the 4th of April, 1892, and there was found on him a key which fitted the Higgins’ front door, and a letter written in these words:

“Hear Madam. — Your husband met with a very serious accident on Broadway, and is now in St Katharine’s hospital. Come as quick as possible without delay.
“ No. 60 Heywood street”

Mrs. Higgins’ husband had met with no accident and was not taken to St. Katharine’s hospital. The proof was sufficient to sustain the indictment as to the burglarious entry on the 24th of March, 1892. He had a key afterwards which fitted the lock, and there is no doubt but that he got in by means of this key. The jury were called upon to find his motive, and there can be but one conclusion, that he entered to steal.

The intent of the defendant is made still clearer by the fact that he attempted to deliver a decoy letter to get Mrs. Higgins to leave her house, so that, with the key he had, he could again enter in her absence and rifle the house.

The judge committed no error in his question to the jury as to what the prisoner entered the house for.

He left the answer to the jury. The burglary was properly charged and proven as against Mrs. Higgins. She was the only occupant of the house, and the front door was her sole protection, and entry there was aimed at Mrs. Higgins and no other person.

She locked the door, and it was an offense against her possession for the defendant to break it open with intent to steal. Neither § 503 of the Penal Code, or the case of Rodgers v. People, 86 N.Y., 360, is against this view.

The conviction and judgment should, therefore, be affirmed.

Dykman and Pratt, JJ., concur.


text:
    John P. Adams, App’lt, v. Henry A. Morgan, Pres’t of the New York Times, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 13, 1893.)

    Jury — Special—Libel.
    A libel suit, important only to the immediate parties and concerning which no public excitement is shown to exist, is not one calling for a special or struck jury, although the papers claim that the action involves the official misconduct of a person who is claimed to be a brother of the commissioner of jurors.
    Appeal from order directing that a special jury be struck for the trial of the action.

      Frederic A. Ward and George G. Reynolds, for app’lt; Townsend, Dyett & Einstein (Henry Yonge, of counsel), for resp’t.
   Dykman, J.

This is an appeal from an order directing a special jury to be struck for the trial of this action.

The action is for libel, and the answer contains a general denial, facts in justification, and facts in mitigation of damages.

The provision of the Code upon which the motion was made is this: “ Where it appears to the court that a fair and impartial trial of an issue of fact, triable by a jury, joined in an action pending in the supreme court, or in the superior city court, cannot be had without a struck jury, or that the importance or intricacy of the case requires such a jury, the court must make an order upon notice directing a special jury to be struck for the trial of the issue.” Code, § 1063.

This statute is plain and unambiguous, and requires a struck j ury when it appears to the court that a fair and impartial trial of an issue of fact triable by a jury in the supreme court, or in a superior city court, cannot be had without it, or that the importance or intricacy of the case requires it

What appears to the court in this case upon the subject of a fair and impartial trial is contained in the pleadings and the papers used on this motion.

The action is for a libel, and the moving affidavit says it involves the official misconduct of other public officers, among others, a person who, it is alleged, is interested in the contract for cleaning the streets, and whom the affiant was informed and believes was a brother of the commissioner of jurors.

The answering affidavit states that this is a mistake, but it is not very important.

We can find nothing in the papers to justify an inference or belief that a fair and impartial trial of this action cannot be had before a jury formed in the ordinary way.

There is no claim of any public excitement in the county respecting the action, and the safe-guards thrown round the formation of juries in Kings county render it impossible for the introduction of any improper practice in that respect

Neither does the importance or intricacy of the case require a struck jury. It is not an intricate case, and it is important only to the immediate parties.

It is not as intricate either, in the law or facts involved, as a border negligence case, and such cases are tried before the ordinary juries at many circuits with satisfactory results.

Libel suits are not infrequent and the law which controls them is well settled and understood, and the questions of fact submitted to the jury in such cases are not unusually intricate. The order should be reversed, with ten dollars costs and disbursements, and the motion should be denied, with ten dollars costs.

Barnard, P. J., and Pratt, J., concur.


text:
    Tom L. Johnson et al., Resp’ts, v. The Atlantic Avenue Railroad Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 13, 1893.)

    Reference — Breach of contract — Long account.
    In an action for breach of contract, whereby the expenditures made by plaintiffs in pursuance thereof were rendered useless and the enterprise abortive, where it appears that such expenditures are represented by one thousand vouchers and items amounting to $40,000 on the other side, an order of reference is proper.
    Appeal from order denying defendant’s motion for an order of reference.
    Action for breach of contract Defendant leased to plaintiffs certain of its franchises, and the latter covenanted to construct thereunder and operate certain lines of railroad and pay a certain portion of the earnings to defendant. Defendant under this contract was to obtain the necessary consents to the construction and operation of said roads, which it failed to do.

      Tracy, Boardman & Platt, for app’lt; James C. Church, for resp’ts.
   Dykman, J.

We think the motion to refer this action to a referee to hear and determine the same should have been granted.

It was stated in the moving papers that the account of the plaintiffs for moneys alleged to have been expended by them in constructing and equipping the cable road described in the complaint herein, contains the different items included in about one thousand vouchers on one side, and items aggregating about $40,000 on the other side, representing the proceeds of sale of property alleged to have been purchased in connection with the construction and equipment of said cable road.

That allegation receives corroboration by the closing charge in the complaint, that to enable the plaintiffs to comply with the terms of the agreement upon which the action is based, it was necessary for them to expend, and they did expend, large sums of money in the purchase of real estate, machinery, cars, horses, the hiring of employes and other expenditures for construction of the railroad, and that by reason of the defendant’s breach of the said agreement as aforesaid, and its failure to obtain the aforesaid consents, the enterprise contemplated by the agreement became abortive, to the damage of the plaintiff in the sum of $300,000.

Whatever the measure of damages may be, it will be necessary to prove those expenditures upon the trial, and the account thereof will be long and better understood by a referee than by a jury.

The order should be reversed, with ten dollars costs and disbursements, and the motion should be granted, with ten dollars costs to abide the event.

Pratt, J., concurs; Barnard, P. J., not sitting.


author: Barnard, P. J. Dykman, J.

text:
    The People, Resp’ts, v. Joseph Rosenberg, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 13, 1893.)

    Constitutional law — Fat rendering — Laws 1893, chap. 646.
    Chapter 646, Laws 1893, prohibiting the business of fat rendering, bone boiling, etc., in the limits of an incorporated city, or within three miles thereof, is within the scope of the police power of the state, and not violative of the state or federal constitution.
    Appeal from judgment entered upon a conviction of defendant for a violation of chapter 646, Laws 1892.

      A. Simis, for app’lt; James W. Ridgway, dist. atty., and John F. Clarke, asst. dist. atty., for resp’ts.
   Barnard, P. J.

The legislature, by chap. 646 of Laws of 1892, made it a misdemeanor for any person to carry on the business of fat rendering in any incorporated city in the state, with some counties' excepted, but not the city of Brooklyn or Kings County. Before the passage of the act the defendant had carried on his business under a permit from the board of health, at least that fact must be assumed, as the defendant’s evidence to prove it was excluded. The only question, therefore, is whether the act in question is constitutional. The act is good. Come v. People, 82 N. Y., 318; Metropolitan Board of Health v. Hester, 37 id., 661.

There is no conflict between these cases and the subsequent cases decided by the court of appeals. People v. Marx, 99 N. Y., 377; Matter of Jacobs, 98 id., 98; People v. Wilson, 109 id., 389; 15 St. Rep., 503.

The Jacobs case was under an act prohibiting the manufacture of cigars and tobacco in tenement houses. The Wood case was under an act which prohibited the sale of any article of food as a substitute of butter.

The Wilson case came under chap. 691, Laws of 1887, which amended the Penal Code so that it was made a misdemeanor to sell articles of food with an understanding or promise that something else is to be given to the purchaser by way of reward. It is manifest that none of these cases conflict with preceding cases which necessarily involve the question presented by the record. The legislature can determine that fat rendering in the city of Brooklyn is a nuisance without the power of review by the courts.

The conviction and judgment should be affirmed.

Dykman, J.

This is an appeal from a judgment of conviction in the court of sessions of Kings County.

The defendant was indicted, tried and convicted for a violation of chap. 646 of the Laws of 1892, entitled “ An act to prevent fat rendering, bone boiling or the manufacture of fertilizers within the corporate limits of any incorporated city of this state, or within a distance of three miles from the corporate limits thereof.”

The statute is as follows:

Sec. 1. It shall not be lawful for any person or persons to engage in or carry on the business of fat rendering, bone boiling, or the manufacture of fertilizers, or any business, as a public nuisance, within the corporate limits of any incorporated city of this state, or within a distance of three miles from the corporate limits of any incorporated city, provided, however, that nothing herein contained shall prevent the rendering of fresh killed cattle or swine.

Sec. 2. All departments of health, or the commissioner or commissioners thereof in any incorporated city of this state, shall have power to enforce the provisions of this act.

Sec. 3. Any person or persons offending against the provisions of this act shall, upon conviction thereof, be guilty of a misdemeanor. This act shall not apply to the counties of Fulton, Wayne, Tompkins, Chautauqua, Orange, Dutchess, Erie, Monroe, Oneida, Onondaga, Hew York, Schoharie, Ulster, Greene, Cayuga, Hiagara, Saratoga, Schenectady, Hamilton, Montgomery and Orleans.

Sec. 4. This act shall take effect immediately.

The indictment charged the defendant with carrying on the business of rendering the fat from animal matter not from freshly slain cattle and swine.

The testimony upon the trial sustained the allegation in the indictment, and all testimony tending to show that no noxious odors arose from the process of rendering fat; that the defendant carried on the business under permission of the board of health of the city of Brooklyn ; that he had erected buildings and put in boilers for the purposes of the business, and invested capital therefor, and that the neighborhood where the business was conducted was sparsely populated, was excluded by the court, and the defendant excepted to such exclusion.

The only question involved in this appeal is the constitutionality of the law under which the indictment was framed, and the defendant insists upon its unconstitutionality because it interferes with the enjoyment of his property and business without compensation, and that it is beyond the competence of the legislature to prohibit his business, without evidence that it is a nuisance.

The constitutional provisions relied upon by the defendant are these: “No person shall be deprived of life, liberty or property without due process of law. No member of this state shall be deprived of any rights and privileges secured to any citizen thereof.” Sec. 6 of art. 1, and § 1 of art 1, of the State Constitution. “No state shall make or enforce any law which will abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.” U. S. Constitution, 14th amendment

The term liberty, as it is here employed, implies much more-than personal unrestraint It has been said many times of late, in learned and exhaustive opinions in our highest appellate tribunal, that it -includes freedom in the use of the faculties with which the Grod of nature has endowed mankind, freedom in the acquisition and use of property, and freedom to follow a lawful avocation. The rigidity with which the rights of the citizen will be protected from the effects of unauthorized legislation is exemplified in several recent decisions to which allusion may be made here.

In the case of Jacobs, 98 N. Y., 98, a statute had been enacted which prohibited the manufacture of cigars or preparation of tobacco in any form on any floor in a tenement-house, if such floor was occupied as a residence. The title of the act was An act to improve the public health by prohibiting the manufacture of cigars and preparation of tobacco in any form in tenement-houses in certain cases, etc.,” and the court of appeals held it to-be unconstitutional.

In the case of Marx, 99 N. Y., 377, the title of the act brought in question was, “An act to prevent deception in sales of dairy products; ” and § 6 of the act declared, among other things, that no person should manufacture out of any oleaginous substances, or any compound of the same, other than that produced from unadulterated milk or cream from the same, any article designed to take the place of butter or cheese produced from pure unadulterated milk or cream of the same, or should sell, or offer to sell, the same as an article of food. And then there was a proviso that the section should not apply to pure skim milk cheese produced from pure skim milk. That law was also held to be unconstitutional.

In Gillson's case, 109 N. Y., 389; 16 St. Rep., 185, the statute was designed to amend the Penal Code by prohibiting the sale of any article of food upon any representation that anything else would be delivered as a gift or reward to the purchaser, and it was held to be unconstitutional and void.

These three cases, and some others of the same class, are relied upon by the defendant to sustain his attack upon the law under which he was indicted.

It is undeniable that the statute in question impairs the value of the defendant’s property by imposing restrictions upon its use, and thus depriving it of one of its essential attributes, and also abridges his own freedom of action in respect thereto.

It does not follow, however, that because a statute regulates the use of property, or abridges freedom of action in relation to the same, it is, therefore, unconstitutional, or a deprivation of property in the constitutional sense.

Neither individual rights nor the right to property are absolute, and both may be contracted for the welfare of the public without encroachment upon constitutional rights.

In fact, such limitation is implied in all of the constitutional provisions quoted, and, although the language employed is negative and prohibitive, it yet contains an implication that such deprivation may be wrought by such due process of law. It is simply the converse of the implication which confers the immunity so essential to freedom.

In legislative proceedings, due process of law requires no more than conformity .to rules and methods of free governments, and the omission to exercise powers inhibited by the constitution or delegated to the other great departments of government.

There is ever a condition annexed to the ownership of property that its use shall not be injurious or detrimental to the public, and that principle is but the outgrowth and enlargement of the maxim, “ sic uiere tuo ut alienum non laedas,” a fundamental maxim of unlimited obligation as old as civilization, which contains an ethical principle of universal applicability, and which lie’s at the foundation of what is known as the police power of the state. A power which pertains to sovereignty, and is frequently exerted to enforce the observance of the maxim, and is, therefore, co-extensive with the obligation it imposes. Its sphere of operation is wide, and it is far reaching in its legitimate scope. It need not be accurately defined or circumscribed, but when it is exerted in subordination to the constitution it justifies all legislation pertaining to the health, comfort, safety and welfare of the public. It often justifies the total destruction of property, and the removal of every thing dangerous to health.

The power is often exerted to prohibit the use of property for any business in densely populated communities which raises baneful and insalubrious exhalations injurious to health and dangerous to life. But these cases do not bound its sphere of operation. In the case of the People v. King, 110 N. Y., 418; 18 St. Rep., 353, it was permitted a much wider range. It was there decided that the owner of a skating rink subjected it to public regulation so long as he devoted it to purposes of public entertainment.

The full scope and extent of the power was recognized in the three cases first above mentioned and in all kindred cases, but it was held that the statutes under consideration in those cases did not fall within its operation.

In speaking of the power in the Jacobs ease, supra, Judge Bari said: “ Under it the conduct of an individual and the use of property may be regulated so as to interfere to some extent with the freedom of the one, and the enjoyment of the other.”

Judge Cooley says: •' The regulation must have reference to the comfort, safety and welfare of society,” Const. Lim, 719, and as that seems to be in harmony with both principle and authority, we will now turn to the act under consideration and ascertain where it must be placed.

In this country many elements enter into the consideration of every question of constitutional law. We live under two governments, the state and the national. Each of these has its constitution, to which all owe obedience, and each has its peculiar sphere of action. The powers of the national government are definite and restricted, and those of the state government are general and residuary.

All legislative power of this state is vested in the senate and assembly, and that power comprehends every subject which belongs to the legislative department of government, subject to the limitations imposed by the constitution of the state or of the United States.

By reason of the generality of the legislative power in the state legislature the presumption is in favor of the constitutionality of legislative acts.

Starting, therefore, with the presumption in favor of the validity of this statute, we must determine whether it is violative of any constitutional limitations or restraints.

The statute renders it unlawful for any person to carry on the business of fat rendering, and some other businesses of the same character, within the limits of any incorporated city in this state, or within three miles from the limits thereof. Certain counties are exempted from its operation, but Kings county is not so excluded.

The indictment against the defendant is for fat rendering; that is, for melting and clarifying animal fat, and that business has ever been classed with bone boiling, slaughter-houses, soap boiling and the like, as noxious, and prima facie a nuisance. Dubois v. Budlong, 15 Abb., 446; Catlin v. Valentine, 9 Paige, 575; Brady v. Weeks, 3 Barb., 157; Peck v. Elder, 3 Sandf. Sup. Ct., 129.

Such uses of property are, prima facie, a nuisance, because experience has demonstrated their productivity of ill results. Offensive odors are liberated in the process of melting the tallow, and the fumes and stenches arising therefrom impregnate the air and render it impure, uncomfortable and unwholesome.

It was decided in the case of Peck v. Elder, 3 Sandf., 126, that a fat melting house in a city, for the purpose of trying animal fat from the slaughter-houses, was presumptively a nuisance to the inhabitants of the city.

Such being the character of the business prohibited by this statute, it falls easily within the scope of the police power of the state. The preservation of the public health has ever been a primary object of the legislature; boards of health are organized for that purpose in the towns, cities and villages of this state, and the power to make by-laws and ordinances to secure sanity and health has been delegated by the legislature to municipal corporations. All health laws and the quarantine laws are also based upon the same power, and the right to make all necessary laws for the preservation of the public health has been exercised since the formation of the state government, and cannot now be successfully questioned.

At the first session of the legislature a law was passed, on the 4th day of April, 1778, to prevent the spreading of small pox, by which the justices of the peace were authorized to appoint houses where persons infected with the small pox might reside, and provided for the forcible removal of such persons to such houses.

. On the 18th day of April, 1784, the legislature of the state passed an act making it unlawful for any person to keep more than twenty-eight pounds of gun powder in any one place, less than one mile to the northward of the city hall in New York city, except at the public magazine at the Fresh Water, meaning the old Collect Pond.

The first quarantine law in the state was passed May 4, 1784, soon after the close of the revolutionary war, and was entitled an act to prevent the bringing in and spreading of infectious distempers in this state.

It provided that all vessels having on board any person infected with any contagious distemper, or coming from any place infected with such contagious disease, should not come into any port in this state, and should not come nearer to New York than Bed-low’s Island, and should be obliged to perform quarantine under certain specified regulations.

That kind of legislation has remained unchallenged, and has been continued with augmented severity, so that now the largest vessels are arrested and searched, the liberty of the passengers restrained, and the infected cargo cast into the sea.

The same power which justifies the destruction of property and the removal of everything dangerous to health, and subordinates private interests to the welfare of the public, is sufficiently cogent and coercive to justify a law which prohibits the use of private property in a large city for a purpose which is noxious and injurious to the health of the community.

It is the sovereign power of the state committed to the legislature for the safety of the community to be exerted for the production of the end by adequate means, not violative of constitutional limitations.

It was within the province of the legislature to determine that the exigency existed in the cities of this state for the exercise of the power, and we conclude that the business conducted by the defendant was a proper subject for its exercise.

The law was enacted and designed to promote and protect the public health, and it was appropriate to the accomplishment of that end. It does not, therefore, infringe upon the liberty guaranteed to all to adopt any lawful pursuit not injurious to the community, because as we have seen this particular business is so injurious.

That the statute is new or more stringent than former laws is no argument against its validity. Judge Andrews in the opinion in Lawton v. Steele, 119 N. Y., 233; 29 St. Rep., 581, said: “But we know of no limitation of legislative power which precludes the legislature from enlarging the category of public nuisances, or from declaring places or property used to the detriment of public interests or to the injury of health, morals or welfare of the community public nuisances although not such at common law.”

Statutes regulating trade and controlling the use of private property in the public interest have been upheld in recent years in this state, and in the supreme court of the United States.

In 1883 the legislature of this state passed a law declaring any fish net found in any of the waters of the state in violation of existing laws for the preservation of fish to be a nuisance, and authorizing their destruction, and that act was held to be a valid exercise of the legislative power. Lawton v. Steele, 119 N. Y., 226; 29 St. Rep., 581.

Section 383 of the Penal Code, declaring that no citizen can be excluded from places of amusement by reason of race or color, was held to be a valid exercise of the police power of the state over a subject within the cognizance of the legislature. People v. King, 110 N. Y., 418; 18 St. Rep., 353.

The act fixing the maximum charge for elevating grain was held to be a legitimate exercise of the police power of the state over a business affected with a public interest. People v. Budd, 117 N. Y., 1; 26 St. Rep., 533; People v. Walsh, 117 N. Y., 621; 26 St. Rep., 554. This last case involved the same question as the Budd case, and was subsequently affirmed by the supreme court of the United States.

The case of Munn v. Illinois has become a leading case, and it holds the same doctrine.

In the case of Bertholf v. O'Reilly, 74 N. Y., 509, the court of appeals decided that the legislature had power to create a cause of action for damages in favor of a person injured in person or property by the act of an intoxicated person against the owner of real property, whose only connection with the injury was that he leased the premises with knowledge that intoxicating liquors were to be sola thereon.

The operation of that statute certainly was to restrain the freedom of the owner in the use of his property and so impair its value, and so far was parallel with this, and yet it received the sanction of our highest court

We are, therefore, led to the conclusion that the statute under consideration is a valid exercise of legislative power, and that the conviction should be affirmed.

Pratt, J., concurs.


text:
    Louis Rapps et al., Resp’ts, v. Henry Gottlieb et al., Def’ts.

      (Supreme Court, General Term, Second Department,

      Filed February 13, 1893.)

    Mortgage — Fraud—Bona fide assignee.
    Plaintiffs desired to obtain a loan from Gr. on mortgage, and at his request left the mortgage with him without payment, he receipting therefor and promising to pay “if everything was correct,” or to return the mortgage. Instead of doing so he put the same on record and sold it to S., who was an innocent purchaser, without notice. Held, that there was no delivery of the mortgage, and it never had life in G-.’s hands, and that S. stood in no better position than her assignor.
    Appeal by the defendant, Bettie Stern, from a judgment in favor of plaintiffs, for the cancellation of a bond and mortgage and the surrendering of the same to plaintiffs.

      Charles Steckler (Alfred Steckler, of counsel), for app’lt; Jacob Manheim, for resp’ts.
   Barnard, P. J.

The plaintiffs, being the owners of certain real estate in Kings county, applied to the defendant, Gottleib, for a loan thereon for $1,000. The mortgage was a third mortgage on the property, and Gottleib demanded seventy-five dollars for making the search and examining the property. This was on the 25th of May, 1892. On the next day plaintiffs gave Gottleib their deed, and he drew a mortgage to himself for the $1,000. This was executed the same day, and Gottleib requested the plaintiffs to leave the bond and mortgage with him without payment They objected to that, and Gottleib gave them a receipt for the bond and mortgage, and promised to pay $925 “if everything was correct,” or to return the mortgage. It was expressly agreed that the bond and mortgage were to be of no effect without payment. Gottleib put the mortgage on record, and on the 24th of June, 1892, sold the same to the defendant, Stern, for $1,000. -She was an innocent purchaser, and bought without notice of the fraud committed by Gottleib. There was no delivery of the bond and mortgage to Gottleib. It, therefore, never had life in Gottleib’s hands. A purchaser of a mortgage takes it subject to all equities, and stands in the place of the assignor. Briggs v. Langford, 107 N. Y., 680; 12 St. Rep., 461; Hill v. Hoole, 116 N. Y., 299; 26 St. Rep., 657; Trustees of Union College v. Wheeler, 61 N. Y., 88.

The evidence as to the good faith of the defendant, Stern, is not very clear from a careful examination of the testimony in respect to her purchase. The rule, however, that if she was a bona fide purchaser she stands in no better position than her assignor, Gottleib, renders a discussion upon this point unnecessary. The mortgage was never delivered, and Gottleib never had anything to sell.

The judgment should, therefore, be affirmed, with costs.

Dykman and Pratt, JJ., concur.


author: Pratt, J.

text:
    Arthur M. Dodge et al., Resp’ts, v. Henry A. Ockerhausen, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 13, 1893.)

    Bills and notes — Bona fide indorsees — Counterclaim.
    Defendant gave a note to K. & Co. in payment for labor, which was indorsed by them to plaintiffs, and when the same was due defendant gave them new notes therefor. In an action thereon, defendant set up want of consideration and counterclaims for breach of contract by K. & Co., and for a failure of plaintiffs to deliver lumber to K. & Co. in time to enable them to complete. Held, that there was a good consideration for the notes, and that the counterclaim, if any existed, did not attach to the note, and it passed to the plaintiffs free from any set-off.
    Appeal from judgment in favor of plaintiffs, entered on verdict directed by the court.
    Action upon two promissory notes. Defense, want of consideration, and a counterclaim for breach of contract on the part of Keely & Go. in failing to complete the building of a pavilion at the time specified, and that Keely & Co. purchased the lumber therefor from plaintiffs, who did not deliver the same in time to enable them to complete according to contract
    On or about September 18, 1890, defendant gave to Dennis Keely & Son his promissory note for $1,019. It was given for labor rendered by Keely & Son to defendant. At the time it was given defendant owed Keely & Son that amount of money, in payment of which this note was taken.
    Keely & Son owed this amount to plaintiffs for lumber used in defendant’s buildings, and indorsed this note over to them in payment of said indebtedness. When this $1,019 note became due, three months thereafter in December, defendant paid said note by two notes, for $500 and $519, respectively, and gave them to plaintiffs. They were given in place of the said $1,019 note, which was to the order of Dennis Keely & Son. These two notes were given direct to the order of plaintiffs, Dodge & Co. When these last two notes, to the order of Dodge & Co., became due, three months later, in March, defendant gave the two notes in suit, payable to Dodge & Co. direct The defendant paid the interest or discount on these notes to the order of plaintiffs.

      Philo P. Safford, for app’lt; Randolph Parmly, for resp’ts.
   Pratt, J.

The note of $1,019, in renewal of which the notes in suit were given, was executed for a good consideration. If, at the time it was made, any counterclaim existed against the payee in favor of the maker, it did not attach to the note. That passed to the indorsees free from any set off.

If Keely & Son had a cause of action against plaintiffs for delay in delivering the lumber, they have it yet. There is no evidence that it has been transferred by them to this defendant

The court below correctly held that there was no question for the jury.

Judgment affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.


author: Per Curiam.

text:
    Isaac Altman et al., Adm’rs, App’lts, v. Eli Hofeller, Impleaded, Resp’t.

      (Court of Appeals,

      Filed March 21, 1893.)

    Appeal — Stipulation for judgment absolute.
    The fact that a provision was added to an order of the general term affirming a judgment, at a subsequent session of said court, by which it was directed that it should be of no force as against H., one of the parties in whose favor a new trial was awarded, in no respect alters the situation from what it would have been if the provision had been contained in the original order granting a new trial, and the plaintiffs cannot sever a provision in the order that on such new trial the accounting between the other parties should not bind H. from the direction for a new trial, and appeal from that alone, and in this way escape from the necessity of stipulating for judgment absolute.
    Appeal from judgment of the supreme court, general term, fifth department, reversing the judgment on the report of a referee, as to defendant, Eli Hofeller, and affirming it as to the other defendants.

      Norris Morey, for app’lts; Wm. F. Cogswell, for resp’t.

       See 46 St. Rep., 517.

   Per Curiam.

The appeal must be dismissed. The general term, in the exercise of its jurisdiction, had the power to determine the appeal and to affirm or reverse either generally as to all the parties, or to affirm as to one or more parties, and reverse as to another and grant a new trial. In granting a new trial it inserted in its order, and as part thereof, a provision that on the new trial the settlement of the administrator’s accounts by the referee, and which was rendered final as between the accounting parties and the plaintiffs, the administrators of the sureties on the administrator’s bond, by the affirmance of the judgment as between these parties, should be of no force or effect as against Eli Hofeller, in whose favor a new trial was awarded. The fact that this provision was added to the order granting a new trial by amendment made by the general term at a subsequent session, in no respect alters the situation from what it would have been if the provision had been contained in the original order granting a" new trial.

The court had an inherent right to conform the order to the decision intended to be made. The plaintiffs had two courses open when the order was finally settled. They could appeal from the order granting a new trial, giving the usual stipulation for judgment absolute, or go back and try the case over again as between themselves and the defendant, Eli Hofeller.

The question as to the right of the general term to declare in the order granting a new trial that on such new trial the accounting between the other parties should not bind Eli Hofeller, could be raised in this court on appeal from the whole order, and the plaintiffs could then argue the question of the power of the court to insert the provision. They cannot sever this provision in the order from the direction for a new trial and appeal from that alone, and in this way escape from the necessity of stipulating for judgment absolute. The other course was to go back, and on the new trial insist that the accounting was in law conclusive on Eli Ho-feller, notwithstanding the provision in the order of the general term, and that the general term had no power, while leaving the accounting to stand as between the accounting parties, to make it of no force as between the plaintiffs and Eli Hofeller. If the ruling on this point on the new trial should be adverse, the plaintiffs can raise the question by exception and have it detided on an appeal from the judgment on the new trial, if judgment goes against them.

We think it plain that the present appeal is unauthorized, and it should, therefore, be dismissed.

All concur.


author: Peckham, J.

text:
    Cornelius S. Hoffman, App’lt, v. Charles H. Wight, Impl’d, Resp't.

      (Court of Appeals,

      Filed March 21, 1893.)

      1. Pleading — Striking out irrelevant matter — Code, § 545.
    Plaintiff commenced an action against defendant Wight, alleging the recovery of two judgments against Wight and Newell, as copartners, in New Jersey, upon service upon Newell only, and by an amended complaint aliened the original indebtedness and the recovery of judgments thereon. Wight demurred, on the ground that the judgments had been procured without service upon him, but judgment for plaintiff being ordered on the demurrer, on the ground that the allegations as to the judgments were surplusage,a motion by Wight to strike them from the complaint as surplusage was granted. Held, error, as not the proper form in which to raise the question.
    3. Same.
    The question as to whether the complaint contains a cause of action, taking in all the allegations, ought to be raised either by a demurrer, or else upon a trial of the cause, when evidence is offered, or at the close of the case, by a motion for a nonsuit, or in some other proper way.
    Appeal from judgment of the New York superior court, general term, affirming order striking out certain allegations of the complaint.
    The complaint, served upon defendant Wight, alleged two judgments of record against the defendants Wight and Newell, as co-partners, in the circuit court of Union county, New Jersey, upon service of the summons upon the defendant Newell only. To this Wight demurred, and plaintiff served an amended complaint, alleging the original indebtedness of the defendants to the plaintiff, and the recovery of the judgments thereon, and demanded judgment for the aggregate of the two judgments, which included claims and the costs of the suit. To this Wight again demurred, on the ground that the action was not on the original demands, but upon the judgments, which, having been procured without service of process upon him, was void as to him, and so did not constitute a cause of action against him. Mr. Justice McAdam directed judgment in favor of plaintiff on the ground that the action was on the original demands, the allegations as to the judgments being surplusage. Wight, upon leave given, withdrew his demurrer and made a motion, among other things, to strike from the complaint as surplusage all reference to the judgments, which was granted, and on appeal to the general term the order was affirmed.

      Alex. Thain, for app’lt; Ira B. Stewart, for resp’t.

       Reversing 50 St. Rep., 218.

   Peckham, J.

This order, as it now stands, strikes out entirely from the complaint certain allegations which, if the action be regarded as upon the judgments obtained in New Jersey, are, in any event, material, so far as the defendant is concerned who is impleaded with the defendant Wight.

Whether the allegations are relevant and material as against Wight depends upon what force is to be given to the judgments obtained in New Jersey as against him.

It may be that the defendant is right in his contention that the judgments are of no validity for any purpose whatever as against him.

The result of the order here made is to strike out what is, at all events, a material allegation against the other defendant, and to leave the plaintiff with no cause of action whatever against such defendant, assuming that his cause of action, as alleged, was one upon the judgments. We think the case is not within the proper scope of the section of the Code § 545, which allows irrelevant and redundant matter to be stricken out.

The question whether the complaint contains a cause of action, taking in all the allegations, ought to be raised either by a demurrer, or else upon a trial of the case, when evidence is offered, or at the close of the case, by a motion for a nonsuit, or in some other proper way.

Without further discussing the question, and without deciding the point as to the effect of the New Jersey judgments against defendant Wight, we are clear this is not the proper form to raise the question.

The orders should be reversed, with costs to appellant in all courts, and the motion to strike out should be denied, with ten dollars costs.

All concur.


text:
    Charles F. Henricus et al., Appl’ts, v. Charles Englert, Resp’t.

      (Court of Appeals,

      Filed March 21, 1893.)

    1. Principal and surety — Parties.
    Where plaintiffs were obligees to a bond as “agents,” and were really acting as such for their wives, an action thereon must be brought in their own names, if the bond be under seal, but if not under seal their wives, could have maintained the action.

      2. Same.
    Plaintiffs, as agents, contracted to erect a building for the village of B., and sublet the carpenter work to Y., who gave a bond to do the work in accordance with the architect’s plans. The village being dissatisfied, the damages were adjusted by V., the plaintiffs and the village at $550, which was deducted from the contract’price, and in this action on the bond the referee found that by reason of changes in the plans by V. and the architect and the village, defendant was discharged from liability. Held, error, as the changes were made without the consent of the plaintiffs, and so could not affect their obligations.
    3. Same.
    When Y. finished his work plaintiffs paid the money received from the village in satisfying liens which had been filed against Y., and so were obliged to pay more than was due Y. under his contract. Held, that plaintiffs’ right of action remained to them notwithstanding such payments.

      Appeal from judgment of the supreme court, general term, fifth department, affirming judgment entered on report of referee.
    In September, 1884, these plaintiffs, signing themselves as agents, entered into a contract with the village of Brockport to erect a village building, according to plans and specifications drawn and prepared by H. D. Gleason, architect, for the sum of $9,700. Thereafter, they sublet the carpenter work upon the building to Leonard Vogel, for the sum of $4,000. They required Vogel to give security for the performance of his contract with them, and thereupon he furnished to them a bond executed by the defendant under his seal, in the penal sum of $5,000, conditioned that Vogel “ shall perform all the obligations, covenants and agreements made and entered into with the said Henricus & Son, agents, and shall erect, work, make and complete a certain town hall and fire department building for the village of Brock-port, Mew York, agreeable to the plans, and in perfect keeping with the revised carpenter specifications prepared for the same by H. D.'Gleason, architect.”
    After the completion of the building, the village claimed that it had not been erected according to plaintiffs’ contract with it, and claimed damages for, and on account of defects in the work and materials. Upon negotiations and settlement between Vogel, the plaintiffs and the village, those damages were adjusted at the sum of $550, which amount was deducted from the contract price payable to the plaintiffs. Thereafter, the plaintiffs commenced this action against the defendant, upon his bond, alleging a breach thereof, and claiming to recover as damages, the sum of $5,000, the full penalty of the bond. The defendant answered the complaint, and, besides denying most of the material allegations thereof, set up two affirmative defenses, (1) that at the time of the execution of the bond, an arrangement was made and entered into between the village, Vogel and the plaintiffs, whereby Vogel was substituted in the place and stead of the plaintiffs, as principal contractor with regard to so much of the work upon the building as Vogel had contracted'with the plaintiffs to do, and that under and in pursuance of that arrangement, Vogel was accepted as such contractor, with regard to such portion of the work; and thereupon the bond of the defendant was delivered over and assigned to the village as security for the performance of the work by Vogel; (2) that on or about the 25th day of March, 1885, all matters in difference between the plaintiffs and Vogel, and between Vogel and the village, and all matters growing out of any of the transactions set forth in the complaint were duly settled, liquidated, adjusted and discharged, and the defendant was thereupon released and discharged from any liability or supposed liability alleged to have existed against him by reason of the matters set forth in the complaint. The action was referred to a referee and brought to trial, and upon evidence submitted to him he found the making of the contracts, the execution and delivery of the bond, the erection of the building, the claim made by the village for damages for breach of the contract with it, which damages were adjusted by the plaintiffs, Vogel and the village at the sum of $550, and deducted from the sum payable to the plaintiffs under their contract with the village. He also found that after the execution of the bond there were some changes and alterations in the plans of the building by Vogel, the architect and the village, and lie decided that on account of such changes and alterations the defendant was discharged from any liability upon his bond, and upon that ground dismissed the complaint. The plaintiffs appealed to the general term, and, as appears from the opinions there pronounced, it differed from the referee and held that the alleged changes and alterations in the manner of constructing the building were not such as to discharge the defendant from his obligation under his bond ; but it held that he was discharged because of the finding by the referee that the plaintiffs had fully paid Vogel the contract price due him, and upon that ground it affirmed the judgment. Then the plaintiffs brought this appeal,

      F. F. Turk, for app’lts; Wm. M Werner, for resp’t.

       Reversing 43 St. Rep., 595.

   Earl, J.

The plaintiffs attached to their names in their contract with the village the word “ agents,” and it appeared upon the trial that in the making of the contract and the erection of the building they were actually the agents of their wives, although the contract did not purport to bind, and did not describe or name the wives as principals. In form it bound the plaintiffs only. They were obligees in the bond under the name of “M. Henricus & Son, agents,” no other person being described or named in any way as obligee. One of the defenses insisted upon by the defendant was that the plaintiffs were not the real parties in interest, and could not maintain this action in their names. The bond was their bond, although the word “ agents ” followed their names therein.

The defendant did not bind himself or become under obligation to any other person, and the plaintiffs are the only persons who can maintain an action upon the bond, a sealed instrument, and so it has frequently been held. Briggs v. Partridge, 64 N. Y., 357; Kiersted v. R. R. Co., 69 id., 343; Schaefer v. Henkel, 75 id., 378. If this instrument had not been under seal a different rule would have applied, and the real parties in interest, the wives of these plaintiffs, for whom they were acting as agents, could have maintained an action upon the instrument. But where an instrument is under seal, no person can sue or be sued to enforce the covenant therein contained, except those who are named as parties to the instrument and who signed and sealed the same.

It is quite true that there were some changes in the plans and specifications for the erection of this building after the execution of the bond, but those changes, whatever their character, were made without the direction, consent or procurement of the plaintiffs, and it does not appear that they had anything whatever to do with the making of them. They were not even bound to' protest against or object to them. They were made by Vogel and the architect who was employed by the village to superintend the erection of the building, and some of them may have been assented to by the trustees of the village. Changes thus made in the contract of the principal cannot affect the obligations of the defendant to these plaintiffs. If the plaintiffs had in any way been a party to those changes and alterations of the contract the defendant would have been in a position to claim, whether successfully or unsuccessfully we do not determine, that he was discharged from the obligation of his bond as surety for Vogel. But it is impossible to perceive how any action of Vogel, or of Vogel and the architect, could deprive the plaintiffs of their right to enforce the obligations of the bond against the defendant If any authority is needed for a conclusion so obvious, the following are ample for that purpose: Charlotte, Columbia & Augusta R. R. Co. v. Gow, 59 Ga., 686; Richardson v. Allen, 74 id., 720; Hagood v. Blythe, 37 Fed. Rep., 249; Post v. Losey, 111 Ind., 74; Clarke v. Birley, L. R., 41 Ch. Div., 422; Frazer v. Jordan, 8 El. & B., 311. We may also notice that the defense that the defendant as surety was discharged by changes in the contract, was not set up in the answer.

The general term held that the defendant was discharged because the referee had found upon the request of the plaintiffs that Vogel had received from them full payment of the contract price for the carpenter work. If the plaintiffs, knowing of the breach of his contract by Vogel, had voluntarily settled with him and paid him the contract price for his work, and had thus discharged him, they would not now have a right of action upon this bond. Their remedy against this defendant can be no greater or broader than that which they have against Vogel, and if they could not have sued Vogel at the time this action was commenced for a breach of his contract, they could not maintain an action against the defendant upon his bond. But this particular defense was not set up in the answer, and the facts in reference thereto were not very fully brought out It does appear, however, that when Vogel had finished his work under his contract, liens had been filed against the building by persons who had furnished materials and work to him, and the plaintiffs took the money which was paid to them by the village, and instead of paying to Vogel what was due him under his contract, they paid it in discharge of the liens filed against the building, and in this way were obliged to pay more than was due him under his contract It was in that way, and in that way only, that they made full payment of the contract price to him. While there was no finding or proof that they were obliged to pay these liens as a condition of payment by the village to them, yet we think it is fairly inferable from the circumstances, as no objection was made to the proof and no claim made upon the trial that those payments were not made upon the obligations of the plaintiffs to the village, and thus made, as between the plaintiffs and Vogel, under a species of compulsion. Notwithstanding such payments, we think that the plaintiffs’ right of action against Vogel for his breach of contract remained to them, and that thus they have a right of action upon the defendant’s bond, notwithstanding such payments. Upon the new trial, which we are constrained to order, the facts with reference to those payments may be more fully brought out We think this defense should not prevail now upon such facts as appear in this record.

It is not entirely clear that the $550 damages allowed to the village upon the settlement between it and the plaintiffs and Yogel were allowed on account of defective work and materials under Vogel's contract Some portions thereof may have been allowed, and in the evidence appears to have been allowed on account of defective work in the portion of the contract for the erection of the building performed by the plaintiffs themselves. All they can recover of the defendant is the amount of damages which they were obliged to allow to the village on account of Vogel’s breach of his contract, and in no event can they recover more, because that was the extent of the damages actually suffered by them.

For these reasons 'the judgment should be reversed and a new trial granted, costs to abide the event.

All concur.


text:
    Thomas F. Mason, Rec’r, Resp’t, v. Samuel T. W. Sanford Impl’d, Def’t.

      (Court of Appeals,

      Filed March 21, 1893.)

    Abatement and bbvivor — Laches.
    In legal actions there is no mere time limitation, but the motion to revive in the name of the representative of a deceased party may be denied for laches in making the motion. In equity actions there is a time limitation of ten years, but in such actions, on account of prejudicial laches, the court may refuse the revivor within the period of limitation.
    Appeal from judgment of the supreme court, general term, first department, affirming order reviving action.

      P. H. Vernon, for app’lts; William C. Trull, for resp’t.

       Affirming 45 St. Rep., 762.

   Earl, J.

This action was commenced by Henry R. Pierson, as receiver, and, he having died, Thomas F. Mason was substituted as plaintiff in his stead. The action was commenced in 1879, against the defendants, as trustees of the Widows & Orphans’ Benefit Life Insurance Company, for an accounting as to the assets of the company diverted, wasted and misapplied by them in the manner and under the circumstances described in the complaint. The action was put in issue by the answers of the defendants, and the defendant, Sanford, died in October, 1882. He left a will which was admitted to probate in January, 1883, and letters testamentary thereon were issued at that time to the executor named therein. In March, 1891, the plaintiff made a motion for leave to sever the action and revive the same against the executor, and the motion was granted. The executor claims that the action could not be revived against him because more than six years had elapsed after letters testamentary were issued to him, and he invokes the rule which has obtained in courts of equity, that an action in equity will not be revived against the representatives of a deceased party where there has been such a lapse of time since administration was granted upon his estate as would have barred the action if the same time had elapsed after the cause of action, had accrued before the commencement of the action. And he cites Mitford’s Ch. Pl., 290; Cooper’s Eq Pl., 302 ; Story’s Eq. Pl., § 831; Hollingshead's Case, 1 Peere Williams, 742; Coit v. Campbell, 82 N. Y., 509. The rule which he invokes could not be so applied as to defeat this motion, because, for the purpose of revivor, this action must obviously be treated either as an action at law or an action in equity.

If it be treated as an action at law then, as we held in Evans v. Cleveland, 72 N. Y., 486, no mere lapse of time could absolutely defeat the application for a continuation of such an action in the name of the representative of the deceased party. If it be treated as an action in equity, then the ten years limitation applied. It would be an unjust application of the rule contended for to hold that while this is an action in equity, yet because the same relief could have been obtained in an action at law, therefore the legal limitation which should have been applied to the action is six years instead of ten, and thus obtain a defense to this motion which would not have been available if the action had been distinctly one at law or one in equity, where equitable relief only could be granted. Therefore, for this reason, without determining whether the plaintiff could have obtained the same relief in an action at law which he seeks in this action, we are of opinion that the lapse of time furnishes no defense to the motion of the plaintiff.

But there is a further answer to the position taken by the executor in opposition, to this motion. The action is distinctly in equity and prays only for-equitable relief. We cannot now say by looking at the pleadings that all the relief the plaintiff will obtain will be such as he could obtain-in an action at law. We cannot now foresee what state of things will be developed upon the trial, nor what kind of relief will be justified and required by the facts which may be found to exist. It may turn out that all the relief the plaintiff will need and obtain will be such as he could have obtained in an action at law. But we cannot now certainly know that, and hence we cannot in considering this motion assume it, and on that ground bold that it should have been denied on the ground of the lapse of the six years.

The rule as to the revival of actions by the substitution of the representative of a deceased party in this state is as follows : In legal actions there is no mere time limitation, but the motion to revive may be denied for laches in making the motion. In equity actions there is a time limitation of ten years. But in such actions, on account of prejudicial laches, the court may refuse the revivor within the period of limitation. Evans v. Cleveland; Coit v. Campbell, supra; Lyon v. Park, 111 N. Y., 350; 19 St. Rep., 626.

We are, therefore, of opinion that the order should be affirmed, with costs.

All concur, except Beckham, J., not sitting.


text:
    Augusta G. Genet, App’lt, v. The President, &c., of the D. & H. Canal Company, Resp’t.

      (Court of Appeals,

      Filed March 21, 1893.)

    Appeal — Motion to amend remittitur.
    A second motion for reargument which is in fact an appeal from the other division of this court, made over a year after the remittitur was handed down, will not he considered by this court.
    Motion to amend remittitur.

      George G. Genet, for motion ; Frank F. Smith, opposed.

       See 34 St. Rep., 246.

   Per Curiam.

This motion must be denied. It is in substance and effect a second motion for reargument after one had been made and denied, brought to our bar more than a year after the remittitur had been sent down by our express direction; without claim or suggestion that any point or authority had been overlooked, and practically and substantially amounting to an appeal from the second division of this court to this tribunal. Nothing of the kind can be permitted, and even the difficulty and danger apprehended by the appellant does not exist. She founds it upon so much of the opinion of the second division as held that the contract involved was a conveyance in fee. We have decided in a later action between the same parties that it is not such a conveyance, and that we had a right so to adjudge because the question was not material to the other action or necessarily involved in it Of course the appellant is not bound by an opinion upon an immaterial issue, and is put in no peril by it, and so the only reason assigned for the present motion is without adequate foundation.

The motion should be denied, with costs.

All concur.