text:
    John Hyatt, Resp’t, v. The New York, Lake Erie & Western Railroad Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    Railroad—Fences—Injuries to animals.
    Near the point of the accident in question, a railroad bridge, defendant’s road runs within about 100 feet of the Alleghany river and past a sawmill and mill yard where there were platforms for loading lumber. Plaintiff’s colt was pastured on the other side of the river, but broke from the pasture, wandered about half a mile to a fording place and there crossed and came upon the mill grounds, from whence it wandered upon defendant's track, and was found dead upon the bridge. Reid, that under the evidence defendant was under no duty to fence the railway at the point where it passed upon its land, and the facts being undisputed the court erred in submitting that question to the jury.
    Appeal by the defendant, the New York, Lake Erie & Western Railroad Company, from a judgment of the supreme court, entered in the clerk’s office of the county of Cattaraugus, on the 9th day of October, 1888, in favor of the plaintiff, for $440.62, damages and costs, and also from an order entered in the same clerk’s office, on the 13th day of January, 1892, made upon a case and exceptions, denying the defendant’s motion for a new trial, together with the judgment entered on such order.

      George F. Brownell, for app’lt; Ansley & Davie, for resp’t.
   Macomber, J.

This action was brought under § 8 of chapter 282 of the Laws of 1854, which makes it the duty of every railroad company to erect and maintain fences on the sides of its road, of the height and strength of a division fence; and, further, that so long as the fences shall not be so erected and kept in good repair, the railroad corporation and its agents are made liable for damages which may be done by the engines or agents of the corporation to any cattle, horses, sheep or hogs upon the railroad. But the statute also provides that no corporation shall be required to fence the sides of its road, except when such fence is necessary to prevent such animals from getting on the tracks from the lands adjoining the same.

This action was brought in the year 1883 for the value of a colt found dead in a bridge crossing a creek which was spanned by the defendant’s railroad, about 500 feet east of the railway station of the defendant at Great Valley, in Cattaraugus county. The allegation of the complaint was that the colt had passed over and upon the railroad track of the defendant for want of a cattle guard at a roadway crossing, just east of the railway station, and through the omission of the defendant to erect a proper fence along its tracks on the south side thereof, easterly of such roadway.

The point is made by the learned counsel for the appellant that the only charge against the defendant in the complaint was the omission to erect cattle guards upon this highway. On inspection of that pleading, however, it will be seen that while the language of it is somewhat ambiguous, yet it is susceptible of the construction which the learned trial justice at the trial placed upon it There is, therefore, in our judgment, no sufficient ground stated for the reversal of the judgment and order for want of a sufficient pleading, although the colt, it is shown, passed upon the railway track, not upon the highway, but easterly thereof, as hereinafter stated.

The defendant’s railway at Great Valley Station runs nearly parallel to the north bank of the Alleghany river, at a distance therefrom varying from one hundred and eighty feet at the bridge, where the colt was found, to one hundred feet, measured at the railway station. This colt, with three horses owned by the plaintiff, was pasturing on the south side of the river, and was so separated from the lands immediately adjacent to the railway by the width of the river, which is shown to be at that point 280 feet. There existed a sawmill between the river and the station, around the southerly end of which the roadway above mentioned passed. Between the sawmill and the main track of the railway there was a long platform for loading lumber which, according to the map in evidence, is something over three hundred feet in length, and which came, at the eastern end thereof, within about fifty feet of this roadway.

To the east of the roadway and of the sawmill there was a mill office, so called. Between this mill office and the railway, and on the east side of the roadway, was a loading platform, which was used for all shipping purposes, except for the loading of lumber, which was done on the platform on the west side of the roadway.. The' space between the platform and roadway to the east for a distance of about five hundred feet, it was shown by several witnesses,, was occupied as a sort of mill yard for the storage of saw logs. The plaintiff himself testified that the soil there was rotten; that it was a millyard with chips and sawdust, coal and cinders, and such like all along the south side of the platform. This colt and the three horses being pastured on the south side of the Alleghany river, broke from their pasture and wandered to the west for about a half a mile, and then crossed the river at a fording place, and came upon the lands in the vicinity of the sawmill on the north side of the river, and thence travelled northeasterly, past the mill office, and immediately to the east of* the loading platform, a distance of about one hundred feet from the roadway. They then passed upon the first track of the defendant, which was used as a switch track for the purpose of bringing cars loaded with lumber from the platform for-loading lumber connected with the sawmill, and from that point wandered to the east, apparently grazing, and came near to this railroad bridge spanning the creek, which empties into the river, where three of them turned off from the track, while the one that was killed was either hit and thrown by an engine of the defendant and lodged between the beams of this bridge, or voluntarily, without being hit, made a plunge into the bridge, where it was found dead in the morning after the escape from the pasture on the south side of the river. This bridge is five hundred feet east of the railway station. The lumber switch track runs east of the station about two hundred and fifty feet. There is another switch on the north side of the main track, on the north of the railway station, called the hack switch, which comes into the main track at a distance of about seventy-five or eighty feet from the bridge.

The loading platform is about ninety or a hundred feet in length. The learned justice at the trial properly construed these statutes as not requiring the erection by the defendant of fences, where the same were not necessary for the purpose of turning horses, cattle, sheep and hogs from the railway lands.

But the question of the necessity of the erection of such a fence at the place where these horses were shown to have passed upon the railway lands was submitted to the jury.

From the necessity of business, many places adjacent to railways, such as railroad stations, shipping yards, and the like, were evidently not contemplated by the legislature in the statute above mentioned, as described in the case of Dolan v. N, D. & C. R. R. Co., 120 N. Y., 571; 31 St. Rep., 852.

Where the facts are undisputed, the question of erecting a fence at such points is one of law, and we think it was incumbent upon the circuit court in this instance to decide it as a question of law, and not to have submitted it to the judgment of the jury as a question of fact. At the place where the horses passed upon the railway lands, which was within a space of five or ten feet from the east end of the loading platform, it is shown that the business of the corporation required that there should be this open space unfenced, for the purpose of serving the public conveniently in permitting the free access of shippers in approaching and departing from the loading platform with their teams. Between this platform and the railway bridge where this horse was found dead, a distance of about four hundred feet, the space, it was shown by entirely credible evidence, had been, before and after this accident, used by the company for the storage of saw logs. Between this storage place and the pasture on the south side of the Alleghany river, from which the horses escaped, was what would apparently be considered, an insurmountable obstacle to the escape of the horses from the south side of the river.

There is evidence from which we may derive the conclusion, that immediately opposite the place where these horses passed upon the railway company’s lands the river was not fordable, for it is shown that the horses wandered to the west to a ford for about half a mile to a point where they escaped from the pasture. The jury, therefore, as it seems to us, had no lot or part in the decision of this question, for it was not for them to speculate as to whether, if a fence had been erected to the east of the loading platform, the horses might not have gone upon the defendant’s land. It is very doubtful whether or not, under this evidence, the colt was in fact struck by a locomotive.

It is clear that, under this statute, if he was merely frightened by the approach of the engine, and plunged upon the bridge and there met his death without being struck by the locomotive, no recovery could be had in this action. The learned justice in denying the motion for a new trial admits that the animal, when found in the morning, showed no marks of a severe concussion with the locomotive, though there is a suggestion, not proof, in some of the testimony that his neck was broken. The position of the colt, which was lengthwise of the bridge, would go far to show that hé had not been thrown there by the pilot of the locomotive, but that he was so caught within the timbers' from a voluntary plunge. Although this is one view of the evidence, as it is spread upon the record before us, we should hardly, however, feel inclined to reverse the judgment upon this ground alone, for there was some evidence from which a deduction, not unreasonable, might be made, that inasmuch as none of his tracks were found for a space of about eight or ten feet west of the bridge, the colt was carried that distance by the locomotive. But for the reason that under" the evidence there was no duty laid upon the defendant to fence the railway at the point upon which the horses passed upon its land, we think the judgment and order should be reversed and a new trial granted.

Judgment and order appealed from reversed and a new trial granted, with costs to abide the event

Dwight, P. J., and Lewis, J., concur.


source: Caselaw Access Project

author: Macomber, J.

license: Public Domain

text:
    Mary B. Smith, Resp’t, v. The People’s Mutual Benefit Society, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)
    Benefit societies—Beneficiaries—Assignment—Estoppel.
    Defendant issued a certificate'of insurance on the life of one R., payable “to John Driscol, son-in-law of the assured, or said beneficiary’s •heirs, administrators or assignees.” Said certificate was by its terms incontestable after one year. It was assigned, with the consent of the defendant, to plaintiff, who was not related to R., and had no insurable interest in his life. By the rules of defendant the beneficiary must be husband, wife, family, heirs, legal assignee or creditor of the insured. Held, that the policy having been issued with full knowledge that the beneficiary was a son-in-law of the insured, without bearing any other relationship to him, and the assignment having been made with full knowledge and consent of defendant, and as by the terms of the policy no contest can be made after one year, plaintiff was entitled to recover thereon.
    Appeal by the defendant, the People’s Mutual Benefit Society, from a judgment entered in Cayuga county, October 6, 1890, upon a decision made at the circuit, a jury being waived, 'directing a judgment against the defendant for the sum due upon a certificate or policy issued by the defendant to one Patrick Ryan on the 16th day of April, 1886.

      Walter S. McGregor, for app’lt; Coburn & Hunter, for resp’t.
   Macomber, J.

life of Patrick Ryan for a sum not to exceed four-fifths of the amount collected from one assessment on all the members in this ■class, provided always that in case death shall occur within ninety days from the date of this certificate the amount paid hereon shall not exceed the sum paid in by the insured, with an addition of ten per' cent, of the same. If death occurs after ninety days and within one year from the date hereof, the sum paid hereon shall not exceed one thousand dollars. If death occurs after one year and within two years from the date hereof, the sum paid hereon shall not exceed two thousand dollars. If death occurs after two years and within three years of the date hereof, 'the amount paid hereon shall not exceed three thousand dollars. If death occurs after three years the amount paid hereon shall not exceed four thousand dollars. The sum to be paid in accordance with the rules and regulations of the society to John Driscol, son-in-law of the assured; or said beneficiary’s heirs, administrators or assignees, with ninety days after due notice and proofs of death have been filed at the home office of the society.”

The policy or certificate contained a condition that the same shall be incontestable by the company after a year from its date.

Among the by-laws of the defendant, § XVII, it is provided, that the beneficiary must be husband, wife, family, heirs, legal assignee or creditor of the insured person.

On the 14th day of October, 1886, for a past consideration, John Driscol assigned to the plaintiff in this action all his title and interest in the certificate or policy. The plaintiff was neither a member of the family of Ryan nor related to him in any way, nor had he any insurable interest in his life. But it is proved and found by the learned court, that the assignment from Driscol to the plaintiff was made with full knowledge and assent of the company. The proof is satisfactory that John Driscol paid the assessments which- were levied up to the time of the assignment to the plaintiff, and that thereafter the plaintiff herself made such payments in due time.

In our judgment it does not make any difference whether the original payee in the policy, John Driscol, was a person who came within the number of those mentioned in the by-laws for whose benefit the policy might be taken out, because the company knew that the relationship to the applicant for insurance was only that of a son-in-law. The company should be estopped to assert afterwards, that the policy was void for any reason, because it is not a case of deception practiced by the applicant for insurance, nor is it a case of mutual mistake on the part of the parties to the contract The action of the company in issuing the policy was clearly a waiver of any by-law or limitation which may have existed in the rules governing its action.

The assignment to the plaintiff is shown to have been with full knowledge and consent of the defendant No fraud is shown to have been practiced by the applicant, and it seems to us that objection to the payment of the claim now made for the amount due upon the certificate is untenable. The policy having been issued with full knowledge that the beneficiary was a son-in-law of the insured without bearing any other relationship to him, and the assignment having been made with the full knowledge and consent, not to say the direction of the defendant, and as, by the terms of the policy, no contest after one year can be made, it seems to follow with reasonable certainty that the plaintiff is entitled to recover the judgment which was pronounced at the circuit. This decision is fully borne out in the case of Wright v. Mutual Benefit Assn., 118 N. Y., 237; 28 St. Rep., 817.

We concur in the opinion of the learned justice pronounced at the circuit, where he says: “ It has been held in many cases that where the policy provided that in case of death the policy was to be paid by assessments upon its members, nevertheless an action at law could bfe maintained for damages upon a broken contract to make such assessment upon showing facts from which the jury could ascertain what such assessment would probably have brought. It has been held under such policies that the plaintiff has either his legal remedy for damages upon a violated contract, or an equitable remedy to compel the making of assessments, or the specific performance of a contract of insurance.” O'Brien v. Home Benefit Society, 117 N. Y., 318; 27 St. Rep., 326. We further concur with the learned justice that the proper judgment to be pronounced was of an equitable nature, directing, that the claim of the plaintiff be included in the pool forming at the time of the entry of the judgment herein, and that the defendant pay to the plaintiff the sum realized upon such assessment upon the plaintiff’s claim, not exceeding the sum of $3,000.

If these views are correct, it follows that the judgment appealed from should be affirmed.

Judgment appealed from affirmed, with costs.

Dwight, P. J., and Lewis, J., concur.


text:
    Mary S. Huber, App’lt, v. John Bletzer, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    Ejectment—Adverse possession in- wipe op dependant.
    In an action of ejectment the answer was a general denial, and that defendant’s wife, who was not a party, and her grantors were in possession under claim of adverse title. The premises had been conveyed to defendant in 1870, and he conveyed the same through a third person to his wife in 1886. There were allegations in the answer tending to show that defendant was in actual occupation, but the answer as a whole did not assert a possession independent of his wife. Held, that it was competent to permit the admission of evidence to show that the possession and occupation was wholly that of the wife, and that the husband had no interest except as husband of the true owner, and such evidence being uncontradicted, a nonsuit was proper.
    Appeal by the plaintiff, Mary S. Huber, from a judgment entered in Monroe county on the 8th day of October, 1890, dismissing her complaint, and from an order denying her motion for a new trial, made on the minutes of the court, and entered in the same county on the 26th day of May, 1891, after a non-suit of the plaintiff at the circuit.
    H. B. Hallock, for app’lt; D. C. Feely, for resp’t
   Macomber, J.

This action is ejectment, and it was brought to recover the possession of a strip of land lying upon the west side of the plaintiff’s lot on Maple street, in the city of Rochester, N. Y., eleven inches wide in front, and extending back 165 feet, and ending in a width of eighteen inches in the rear.

The defense consisted of a general denial and an affirmative allegation that for more than twenty years prior to the bringing of this action, Mary Ann Bletzer, the wife of the defendant, who was not made a party to the action, and her grantors (the immediate grantor being shown to be the defendant himself) were in possession and occupation of this strip of land under a claim of title adverse to the plaintiff.

In the year 1870 a deed was made and delivered to the defendant which covered this strip of land. There was evidence to show that a substantial fence had been erected and maintained at that time on the east side of this lot, on the same line where a fence now stands. On May 12,1886, the defendant conveyed the premises to one Steger for the purpose of enabling the latter to convey the same to the defendant’s wife, Mary Ann Bletzer, which was accordingly done by deeds which contained, in substance, the same description as that contained in the deed of November 21, 1870, to the defendant himself. It was, furthermore, shown that Mary Ann Bletzer, from the time of the conveyance to her, continued in possession and occupation of the premises, the defendant living in the house and supporting the family as husband, but having no interest in the possession of the property other than as the husband of the true owner, Mary Ann Bletzer. There are allegations in the answer from which it is argued with earnestness, by the learned counsel for the appellant, that the defendant has admitted therein an actual occupation of the premises, and hence is a proper party in an action of ejectment and that a judgment may be had against him.

This argument, it is true, does not lack corroboration from certain clauses in the answer. But this pleading, taken as a whole, do.es not, as it seems to us, assert any independent possession of the real estate in question, other than that which he incidentally possessed as the husband of the true owner with whom he lived. There is nothing in the answer which shows that this defendant is the tenant of the premises, or has any control over the same. We are of the opinion that in view of the inconclusiveness of the answer upon this subject, that it was quite competent for the court to permit the evidence which was actually given, showing that the possession and occupation of the premises was wholly that of the wife, and that the husband had no interest therein except as husband of the true owner, and that consequently this action cannot be maintained against him. The evidence upon this subject being entirely uncontradicted, no question of fact arose for the consideration of the jury, and hence, as we think, the nonsuit was proper.

Judgment and order appealed from affirmed.

Dwight, P. J., and Lewis, J., concur.


author: Fitzsimons, J.

text:
    William J. Logan et al., App’lts, v. The Berkshire Apartment Association, Resp’t.

      (City Court of New York, General Term,

      Filed March 10, 1892.)

    1. Pleading—Contract.
    The complaint in an action upon a contract need not set out fully the details thereof ; it is sufficient to allege generally the contract terms, and upon the trial to prove its full performance.
    2. Contract—Performance.
    Plaintiffs contracted to make for defendant a hot water pressure tank, the work to be done to the satisfaction of defendant. The complaint alleged the delivery of the tank ; that it required slight alterations, which plaintiffs proceeded to make but were prevented by defendant from doing so. The answer was a general denial. Plaintiffs' evidence was to the effect that they completed the tank; that it was removed to defendant's house, when complaint was made as to the position of the manhole, which was corrected, and defendant’s representative agreed to accept the tank if plaintiffs did some extra work, which was done. Held, error to dismiss the complaint on the ground that the contract was not completed.
    3. Same—Satisfaction.
    Under the contract in question, the plaintiffs were not bound to “ satisfy '' defendant, but were only required to do the work in a manner that ought to have satisfied it.
    Appeal from judgment in favor of defendant, dismissing the complaint.

      Lyons & Smith, for app’lts; Stickney, Spencer & Ordway, for resp’t.
   Fitzsimons, J.

The plaintiffs are iron workers. They agreed to furnish defendant and place in its house a hot water pressure tank, the size, character and style of finish of which was fixed by the written contract made, which contract further provided that all the work was to be done to the entire satisfaction of defendant, all for $235, and the work to be completed in from two to three weeks.

The complaint alleges only part of the written contract. It does not pretend to set out fully the details thereof, nor is the plaintiff required by law to do so. It is sufficient to allege generally the contract terms and upon the trial to prove its full performance.

It further alleges the delivery of the tank, that it required slight alterations which were rendered necessary because of the change of location of a man hole on said tank, as directed by defendant, and which they proceeded to make while said tank was in defendant’s house, but were prevented by defendant from completing the same.

The answer is a general denial. At the trial, after the close of • plaintiffs’ case, the learned trial justice dismissed the complaint as. follows:

First. Upon the ground that it appears both from the pleadings, the testimony and the remarks of counsel that the contract alleged in the complaint was not completed by the plaintiffs, and, therefore, that until it was completed the plaintiffs cannot recover the contract price.
Second. That the contract, as proved, is entirely different from the contract pleaded, and, therefore, makes an entirely different cause of action, which the defendant is not now ready to meet.
Third. That the work done in pursuance of the contract, which is in evidence, is not shown to be done in accordance with the contract, and, particularly, in that it has not been shown that it was done to the satisfaction of the defendant

To which plaintiffs duly excepted.

The proposition of law applicable to this case is stated in Kunz v. City of Troy, 104 N. Y., 352; 5 St. Rep., 642, as follows:

“ Where a plaintiff is non-suited he is entitled to the most favorable inferences deducible from the evidence, and in reviewing the non-suit all contested questions of fact are to be deemed established in his favor.”

In the light of this exceedingly just rule we will examine the plaintiffs’ evidence and complaint.

The complaint alleges that plaintiffs entered into an agreement with defendant to furnish the tank in question and that they made and delivered said tank to defendant. It must be assumed that the tank as furnished complied with the terms of said agreement; if it did not, then defendant’s plain duty was to allege that fact in its answer, and in view of the fact that it kept the tank, to set up a counterclaim for damages for breach of said contract This it did not do, merely making a general denial.

As for the plaintiffs’ testimony, it is to this effect:

That they completed the tank. That as completed the manhole was on the (up) side and two small drip holes which were misplaced by plaintiffs’ workman, but which would not interfere with the working of the tank in any way and could be easily stopped and made tight. And that the attention of defendant’s agent (Moran) was called to these facts before the tank left plaintiffs’ place of business, which was in Brooklyn, the defendant’s house being in this city.
That subsequently said tank was removed to the defendant’s house and then Moran complained, saying that the man-hole should have another position upon the boiler.
That he and plaintiffs talked that matter over and finally arranged the boiler in such a way that the position of the man-hole was satisfactory to Moran, and he agreed to accept the boiler providing plaintiffs did some extra work, which they did, and that they completed their contract.

This is plaintiffs’ testimony. It is quite true that some of this testimony a jury might believe was weakened on cross-examinatian, but under the rule of law herein quoted we must in plaintiffs’ behalf take the most favorable view of said testimony.

And therefore we think that the said justice erred in dismissing the complaint upon the ground (first) that the contract alleged in the complaint was not completed.

As above stated by us, the complaint does not claim or pretend to set out fully and in detail the contract made between plaintiffs and defendant, and therefore the question whether or not the plaintiffs complied with said contract should have, been submitted to the jury.

The trial justice should not have determined that fact; besides the defendant had according to plaintiffs’ testimony received and accepted the boiler, and therefore it had only the right of counterclaim in case plaintiffs did not fully perform their contract. 2 Benjamin on Sales, 548.

As to the “ third ground of dismissal,” we think it was error to dismiss for the reasons therein set out, because the testimony shows “that plaintiffs completed their contract.”

The question whether they did so to defendant’s satisfaction was for the jury to decide.

The plaintiffs in this case were not bound to “satisfy” defendant.

They were only required to do said work in a manner that “ ought ” to have satisfied it. Duplex S. Boiler Co. v. Garden, 101 N. Y., 387; 1 St. Rep., 51.

. The pleadings in this action are hereby amended so as to conform to the proof.

Judgment is reversed and a new trial ordered, with costs to appellants to abide event of action.

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


text:
    Margaret D. Brennan, Resp’t, v. Percival D. Griffiths, App’lt.

      (City Court of New York, General Term,

      Filed March 10, 1892.)

    Pleading—Answeb to ibbelevant allegations.
    Where the complaint contains irrelevant and redundant allegations not necessary to a correct and just disposition of the case, the plaintiff cannot complain if defendant answers such allegations fully and fairly.
    Appeal from order striking out portions of the answer.

      W. Lane O'Neill, for resp’t; Guggenheimer & Untermyer, for app’lt.
   Fitzsimons, J.

This is an action for $100,000 damages for alleged breach of promise to marry. Paragraph “ first ” of the complaint alleges “ That defendant is a non-resident, not a citizen, but an Englishman and British subject, whose domicil is in England, and he is only temporarily residing and employed here, etc.”

The answer denies the allegations of the complaint. The “first” paragraph thereof is-as follows: First. He denies that he is a nonresident, and he denies that his domicil is in England, or that he is only temporarily residing here.

He alleges that he is permanently residing at Ho. 576 Fifth avenue, in the city of New York, occupying apartments which are leased by him by the year, and that he has been an actual resident or inhabitant of the city, county and state of New York, and has been actually domiciled there for upwards of three years last past; and this defendant further alleges that he has expressed his intention of becoming an American citizen.

Plaintiff’s counsel moved to strike out of the answer said paragraph, which motion was granted, as follows:

It is ordered that the following words, forming part of, and contained in, the first paragraph of the defendant’s answer to the amended complaint, namely : “ He alleges that he is permanently residing at Ho. 576 Fifth avenue, in the city of New York, occupying apartments, which are leased by him by the year, and that he has been an actual resident or inhabitant of the city, county and state of New York, and has been actually domiciled there, for upwards of three years past, and this defendant further alleges that he has expressed his intention of becoming an American citizen,” be and the same are hereby stricken out of the said defendant’s answer to the amended complaint, and defendant is to pay to plaintiff ten dollars costs of this motion. From said order this appeal is taken.

We think that the justice at special term erred in making said order. The allegation in the complaint above mentioned is irrelevant and redundant, not at all necessary to a correct and just disposition of the cause of action set out in said complaint; in such a case the plaintiff cannot reasonably complain if the defendant answers such allegations fully and fairly.

The plaintiff provoked the defendant to answer her assertion of his non-residence as he did; he was compelled to do so. "Where a plaintiff unnecessarily loads his complaint with allegations not essential to his success, he cannot complain if the defendant answers them by responses which are proper in themselves, considered in relation to the matter which provokes them.” McIntyre v. Ogden, 17 Hun, 604.

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

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


author: Ehrlich, Ch. J.

text:
    In the Matter of the Application of Henry L. Sprague, Resp’t, v. Dudley R. Horton, App’lt.

      (City Court of New York, General Term,

      Filed March 10, 1892.)

    Attorneys—Payment of mioneys collected.
    Where an attorney has collected money under an agreement to collect for a certain percentage of the sum recovered, and there is no dispute as to the facts, he may be summarily ordered to pay the same over to his client.
    Appeal from order directing the appellant to pay over certain money.

      C. E. Davison, for appl’t; E. J. Tinsdale, for resp’t.
   Ehrlich, Ch. J.

By the contract of employment, Horton, as an attorney, was to collect the claim against Fries for 25 per cent. of the sum recovered.

Hnder this contract Horton collected $175, and seventy-five per cent. of it, to wit: $131.25 should,, have been paid over to Sprague.

There was no dispute as to the facts, and the court below properly ordered Horton to pay over this amount, with interest.

The money was collected on a judgment of this court, and Horton was properly required by this court to pay it over. In re Fincke, 6 Daly, 111; Foster v. Townshend, 2 Abb. N. C., 29.

There being no- dispute as to the amount due, it would have been idle to order a reference.

The order made does not abridge the right of the attorney; it merely enforces his obligations to the client and duty to the court.

It was not an attempt to discipline the attorney but to prevent abuse of the process of the court, by means of which the money was collected.

We find no error, and the order appealed from must be affirmed, with costs.

Van Wyck and Fitzsimons, JJ., concur.


text:
    David Conover, Resp’t., v. William F. Lennon, Appl’t.

      (City Court of New York, General Term,

      Filed March 10, 1892.)

    Contract—Counterclaim—Lost rents.
    In an action on a building contract, a counterclaim for lost rents caused by plaintiff’s delay is properly rejected where there is no proof that there were any applicants for rooms during the period of such delay.
    Appeal from judgment in favor of plaintiff.

      James Kearney, for app’lt; William H. Gardner, for resp’t.
   Fitzsimons, J.

There is abundant evidence in this case to sustain the finding that the “ lathing ” was not included in the contract for “plastering.” In fact the testimony of plaintiff shows that he had a special agreement with defendant concerning the “lathing,” which agreement the trial justice chose to believe was entered into between plaintiff and defendant.

He was also justified in finding that the plaintiff performed his work in a reasonable time, besides I think that defendant’s counter-claim for alleged lost rents was not sustained; he merely testifies that he was delayed by the alleged failure of plaintiff to speedily finish his work for one month, and charged plaintiff for loss of rents for that month about $1,250.

There is no testimony tending to show, for the period for which he makes this claim, that there were any' applicants for rooms in said houses; therefore the trial justice was justified in excluding that claim. As to all the other alleged counterclaims, the testimony concerning them was contradictory and conflicting; the plaintiff’s testimony was believed, and the defendant’s disbelieved, and rightfully so, we think.

After carefully reading the testimony, we are convinced that the judgment was a just one, and, finding no errors, said judgment is affirmed, with costs.

Ehrlich, Oh. J., concurs.


author: Fitzimons, J.

text:
    Herbert Richmond, Resp’t, v. Arnold C. Saportas, App’lt.

      (City Court of New York, General Term,

      Filed April 5, 1892.)

    Conversion—Refusal to fay over money received for another’s use.
    The complaint alleged that defendant received a check representing plaintiff’s share in certain moneys, deposited the same to his own account, and refused to pay the same to plaintiff unless the latter would pay him the amount of a note due. Held, a plain case of conversion.
    Appeal from judgment in favor of plaintiff, entered upon verdict directed by the court

      Sullivan & Cromwell, for app’lt; Henry C. Andrews, for resp’t.
   Fitzimons, J.

This This is an action for conversion of a check amounting to seven hundred and nineteen and 64-100 dollars ($719.64) After the testimony of both sides was heard the trial justice directed a verdict for plaintiff.

The testimony even of the defendant shows that plaintiff and defendant and one Wood were entitled to share equally in certain monies paid as commissions by the Pennsylvania Steel Company; that such commissions were received by Wood always from said company.

Wood retained one-third; another two-thirds were divided between plaintiff and defendant.

In this instance the sum of two thousand and one hundred and fifty-eight and 92-100 dollars, ($2,158.92), was due to plaintiff and defendant and Wood for commission.

Wood received the same in three checks,- each one being for seven hundred and nineteen .and 64-100 dollars ($719.64), and drawn to his order; he kept one.

The second he endorsed over to defendant.

The third he endorsed to plaintiff and defendant severally, and delivered these last two checks to defendant, who struck out, personally or through another, the endorsement on the check to plaintiff, deposited both checks in his bank and received the full amount thereof, one thousand four hundred and thirty-nine and 28-100 dollars, ($1,439.28) and then refused to pay plaintiff his share, seven hundred and nineteen and 64-100 dollars ($719.64), unléss plaintiff would pay him (defendant) the amount of a note due, and for that reason only refused to pay plaintiff the check due him.

The complaint stated a conversion of the check in question. The answer was a general denial. No counterclaim or set-off was pleaded. This is a very plain case, of conversion.

Under the testimony nothing was left for the trial justice to do except to direct a verdict as he did for plaintiff. No error was committed. Judgment must be affirmed.

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


text:
    Frank J. Tinkham, App’lt, v. John H. Knox, Jr., Ex’r of the Estate of William S. Livingston, Resp’t.

      (City Court of New York, General Term,

      Filed April 5, 1892.)

    Brokers—Commissions.
    A broker who is not employed, but who brings together the owner and purchaser of property so that an agreement follows, is entitled to commissions if the owner had conscious knowledge that the broker acted as such before the agreement was consummated, otherwise not.
    Appeal from judgment in favor of defendant, entered upon verdict of a jury.
    Action to recover commissions on a sale of real estate.

      W. C. Beecher, for app’lt; Olcott & Olcott, for resp’t.
   Ehrlich, Ch. J.

Where a broker employed to sell or rent property is the means of bringing the owner and purchaser or tenant together, and an agreement follows, the broker is entitled to his brokerage, whether the owner knew, or was ignorant at the time, that the broker’s efforts were the procuring cause. Wylie v. Marine Nat. Bank, 61 N. Y., 415, 417; Lloyd v. Matthews, 51 id., 124, 132. But that is not this case.

The plaintiff does not allege an employment, but that he acted as broker, with the owner’s “knowledge and consent,” and this was the issue tried.

The judge properly sent the question to the jury, telling them in substance, that if the defendant had “ conscious knowledge that the plaintiff had acted as broker before the agreement was consummated, he was liable, otherwise not”

On the issue raised and tried we find no error in the charge, nor in the rulings of the trial judge, and the judgment appealed from must be affirmed, with costs.

McCarthy and Fitzsimons, JJ., concur.


author: McCarthy, J.

text:
    Elias Dorf, Resp’t, v. James N. Walter, Impl’d, App’lt.

      (City Court of New York, General Term,

      Filed April 5, 1892.)

    1. Depositions—Examination op dependant before trial.
    An order for the examination of a defendant for the purpose of enabling the plaintiff to prepare an amended complaint may be granted in the" discretion of the court.
    3. Same.
    A claim that the examination is for the mere purpose of annoying the defendant is no objection to the granting of such order, as the court has power to keep the plaintiff within proper bounds, and ward off all inquiry which is vain or curious.
    Appeal from order for the examination of the defendant before trial.

      Kurzman & Frankenheimer, for appl’t; Hayman, Marx & Rosenthal, for resp’t.
   McCarthy, J.

This is an appeal from an order directing the defendant, James N. Walter, to appear before one of the justices of this court at special term, and be examined, and his deposition taken in pursuance of §§ 870 and 872, Code of Civil Procedure.

The application was made by the plaintiff for the purpose of being able to prepare an amended complaint.

The affidavits on the part of the plaintiff disclose a very peculiar situation and were sufficient in form and purpose to demand, on the part of the justice to whom they were presented, the exercise of a sound discretion. ■

The granting of such an order rests within the sound discretion of the court. Jenkins v. Putnam, 106 N. Y., 276; 8 St. Rep., 710.

It is claimed that this examination is not material and necessary, but merely for the purpose of annoying and harassing the defendant Walter.

We are of opinion that the examination is material and necessary.

As to the question of annoyance, we think it is for the judges now, under the rules of practice and by the rulings at the examination, to keep the plaintiff within the proper bounds and to ward off from the defendant all inquiry which is vain or curious. Raymond v. Brooks, 59 How. Pr., 383.

Folger, J., in Glenney v. Stedwell, 64 N. Y., 122, says, “ That a plaintiff in an action pending may examine the adverse party on oath before the service on him of a complaint and for the purpose of obtaining the facts on which to frame a complaint.”

Barrett, J., in Brisbane v. Brisbane, 20 Hun, 49, quoting from Folger, J., in above case, says: “The expression in § 391 of the old Code, 'At any time before the trial,’ which in the above case (Glenney v. Stedwell) was deemed to cover an examination before as well as after issue, is also to be found in § 870, Code of Civil Procedure.”

We, therefore, think no error was committed and that the order appealed from should be affirmed, with ten dollars costs and disbursements.

Ehrlich, Oh. J., and Fitzsimons, J., concur.


text:
    Margaret Nix, Resp’t, v. Nora Donovan, App’lt.

      (City Court of New York, General Term,

      Filed April 5, 1892.)

    1. Benefit societies—Change of beneficiary.
    The mother of the parties in 1885 took out a certificate of membership in a benefit society, in which defendant was named as beneficiary, and defendant voluntarily paid the assessments thereon until 1889, when the mother assigned the certificate to plaintiff with the assent of the society, and plaintiff paid the subsequent assessments to the mother’s death. A letter and notice of subsequent date were introduced in evidence, naming defendant as beneficiary, but they were not shown to have been written by deceased or that she authorized any one to sign for her. Held, that the fact that defendant voluntarily paid the assessments did not prevent a change of the beneficiary by the insured, and that the court properly held that plaintiff was entitled to the money due on the certificate.
    2. Same—Evidence.
    Testimony of a brother of the parties that his mother said that she wanted plaintiff to have the money is admissible on the question as to whether she intended to invest defendant with a vested interest, and to offset testimony to the contrary.

      Appeal from judgment in favor of plaintiff.

      Charles Sleckler, for resp’t; Mooney & Shipman, for app’lt.
   Fitzsimons, J.

Johanna Moloney, mother of the plaintiff and defendant herein, about April, 1885, became a member of the “ Home Benefit Society,” a life insurance society or association conducting its business upon the assessment plan.

Said society issued a certificate of membership to Mrs. Moloney in which she designated her daughter, the defendant, as payee or beneficiary ; she continued in said society as a member until her death in September, 1890.

On August 25, 1889, Mrs. Moloney assigned said certificate of membership to the plaintiff and such assignment was assented to by the “ Home Benefit Society.”

The defendant introduced in evidence a letter dated September 23, 1889, purporting to be signed by Mrs. Moloney, directed to the “ Home Benefit Society,” stating that she wanted the defendant to receive the insurance money under said certificate; also a notice dated about 4th of October, 1889, purporting to be signed by Mrs. Moloney, naming the defendant as her beneficiary instead of the plaintiff.

Said letter and notice were regularly received by the society.

The defendant’s testimony was to the effect that she paid the assessments on the certificate in question from April, 1885, to May, 1889, and supported her mother during that time.

Bridget Moloney, another sister, testified that her mother said she would like to compensate the defendant for her trouble, by taking out the certificate in question, if said witness or defendant would pay the assessments on such certificate.

The plaintiff testified that she supported her mother and paid the certificate assessments from about May, 1889, to September, 1890, when her mother died, and also paid her doctor’s and medicine bills.

Edward Moloney, a brother of plaintiff and defendant, testified that in October, 1889, his mother told him that she wanted the plaintiff to receive the benefit of the certificate in suit.

In view of this conflict of testimony, I am convinced that the learned trial justice was right in holding that the defendant had no vested interest in the certificate in question.

It is quite clear to my mind that the payment of assessments by both plaintiff and defendant were voluntarily and gratuitously made in response to filial promptings and were accepted by their mother as surii and withqut intention on her part to vest in either of them any interest in said certificate, but evidently and purposely reserved to herself the right to select her own beneficiary.

It is true that if Mrs. Moloney agreed and contracted with defendant to make her the beneficiary under said certificate, providing she (defendant) paid the assessments levied, and that defendant by virtue of such agreement paid assessments, then the defendant would have acquired a vestál interest in said certificate which she could not have been deprived of without her consent. Smith v. National Ben. Soc., 123 N. Y., 85; 33 St. Rep., 67.

Such is not the case here as above indicated by me.

Under these circumstances, Mrs. Moloney had the right to make a change in her payee or beneficiary, Laws of 1883, chap. 175, § 18, with the consent of the society.

It therefore seems to us that the only real question presented for our consideration is, was the trial justice right in finding that the plaintiff was Mrs. Moloney’s only payee or beneficiary under the certificate in question ?

Upon that question the testimony seems to be wholly in favor of the plaintiff.

The assignment to her by Mrs. Moloney on August 26, 1889, is full and complete and regularly approved by the society, while the alleged designation of defendant as such payee by the letter of September 23, 1889, and notice of about 4th of October, 1889, was not at all sustained.

The signatures to said letters and notice were not shown to be the signatures of Mrs. Moloney, or that she authorized another to sign for her; in fact there is no testimony even tending to support defendant’s contention upon this question.

Therefore the trial justice was correct in holding that the plaintiff is entitled to the money due under said certificate.

The testimony of Edward Moloney “ That his mother in September or October, 1889, told him she wanted plaintiff to have this money ” was material and competent, because it tended to show that Mrs. Moloney did not invest the defendant with a vested interest in said certificate, and to off-set the testimony of his sister, Bridget Moloney, at fob 95 of the case

For these reasons, and finding no error, the judgment must b§ affirmed, with costs.

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


author: Dugro, J.

text:
    John H. F. Uhlenhaut, Resp’t, v. The Manhattan Railway Co. et al., App’lts.

      (New York Superior Court, General Term,

      Filed April 11, 1892.)

    Trial—Findings.
    It is not reversible error for the court to direct requests to find to be marked “Refused, except so far as covered by the findings” already made, where the findings asked were not material to the decision of the case.
    Appeal from judgment in favor of plaintiff.
    Defendants presented certain requests for findings, which the court directed to be marked “ Refused,” except so far as they were covered by the findings of fact and conclusions of law settled and signed by him.

      Charles E. Crowell, for resp’t; Davies & Rapallo, for app’lts.
   Dugro, J.

I have examined this case with care, and can find no error which requires reversal.

The finding as to the plaintiff’s fee in Pearl street was warranted by the evidence. If the learned trial judge erred in directing the requests presented to him to be marked, “ refused, except so far, etc.,” the defendants were not prejudiced by the error; for the findings asked were not material to the decision of the case, nor would they, if the request had been properly disposed of, have been beneficial to the party asking them. It was not error requiring reversal for the learned trial judge to act as he did, although he should properly have found upon the questions. Callanan et al. v. Gilman, 107 N. Y., 372; 12 St. Rep., 21.

Judgment affirmed, with costs.

Sedgwick, Ch. J., and Gildersleeve, J., concur.


text:
    Henry Wehle, Rec’r, Pl’ff, v. John V. Koch, Ex’r, Deft (2 cases).

      (New York Superior Court, General Term,

      Filed April 11, 1892.)

    1. Pleading—Demurrer.
    On demurrer to an answer the defendant may show that on the record plaintiff is not entitled to final judgment.

      2. Same—Action against executor.
    In an action by the receiver of a legatee against an executor the complaint showed that the debtor was indebted to the testator, and. that the executor had paid him more than the difference between the debt and amount due on the legacy. Held, that it was the duty of the executor to first apply the debt upon the legacy, and as it appeared from the coplaint that he had paid more than the difference, there was nothing due to the legatee or his receiver, and the complaint was properly dismissed.
    Appeals by defendant from order sustaining demurrer to so much of the answer as set up want of capacity of the plaintiff to sue, as leave to sue was not contained in the order of appointment, and by plaintiff from judgment dismissing the complaint.
    The following is the opinion at special term :
    McAdam, J. —The The moneys in the hands of the defendant are held by him in trust under the will of John V. Koch. The trust is therefore one created by a person other than the judgment debtor. Code, § 187.9. A judgment creditor might nevertheless by bill in equity reach any surplus that had accumulated in the hands of the trustees, and provision might be made in the judgment determining what would be a reasonable allowance for the cestui que trust, and directing the application towards the judgment of any future surplus until the same is fully paid, Williams v. Thorn, 70 N. Y., 270; Wait on Fraud. Conv., §§ 45, 360, and a receiver appointed in supplementary proceedings may seemingly maintain such an action. McEwen v. Brewster, 19 Hun, 337, overruling previous decision in same case reported in 17 Hun, 227. But that is not the nature of the present suit. The complaint proceeds on the theory that the judgment debtor was entitled at the time action was commenced, as of right, to money more than sufficient to satisfy the plaintiff’s judgment, and the prayer is for án accounting and decree directing the defendant to satisfy the demand at once. It appears that John V. Koch, the testator, died February 7, 1888, and' by the tenth clause of his will he gives to his son, the judgment debtor, a legacy of $10,000, to be paid in instalments of $1,000 each year, the first to be paid in one year after the decease of the testator. Under this provision the judgment debtor became entitled to $1,000 February 7, 1889, $1,000 February 7, 1890, and $1,000 February 7, 1891, in all $3,000. The complaint further alleges that the judgment debtor owed the testator at the time of his decease $1,829.15, and that the defendant paid the judgment debtor $1,827.10. The two sums, aggregating $3,656.25, exceed the instalments due the judgment debtor when this suit was commenced; hence there was nothing owing to him or his receiver at that time. The legacy to the son did not discharge the debt he owed the testator. Rickets v. Livingston, 2 Johns. Cas., 97, Clark v. Bogardus, 2 Edw. Ch., 387; and cases collated in Redf. Pr. (3d ed.) 579. It was the duty of defendant, as executor, to first apply the debt pro tanto to the ex-tinguishment of the legacy, Stagg v. Beekman, 2 Edw. Ch., at page 92, and he could not postpone or avoid this duty. It is apparent, therefore, that an accounting cannot change these figufes nor alter the result which follows. The plaintiff desired to amend his complaint by omitting the allegations as to the debt. This would simply impose upon the defendant the duty of pleading and burden of pro ving the debt, which might be accomplished by reading in evidence the original complaint in which its existence is affirmatively alleged, Fogg v. Edwards, 20 Hun, 90; Whitney v. Town of Ticonderoga, 24 St. Rep., 950, so that the amendment proposed has nothing of practical utility to commend it. The amendment could not alter the facts, and the application therefor will be denied, and the complaint dismissed, without prejudice to a new action in suitable form at the proper time. Submit findings and order embodying the decision.

      Edward Grosse, for pl’ff; William O. Campbell, for def’t.
   Dugro, J.

Of these appeals one is by the defendant from an order sustaining plaintiff’s demurrer to part of the answer, and from the judgment entered thereon. The others are by the plaintiff from an order striking out his amended complaint and from a judgment dismissing the complaint.

The plaintiff’s appeals are decided against him upon the opinion of the learned judge who dismissed the complaint. It follows, that the order sustaining the demurrer, and the judgment thereon, must be reversed, for on a demurrer to an answer the defendant may show that on the face of the record plaintiff is not entitled to final judgment. Parsons v. Hayes, 50 Super. Ct., 29; Genet v. Kissam, 53 id., 43.

Sedgwick, Ch. J., and Gildersleeve, J., concur.


text:
    Eliza W. White et al., Pl’ffs, v. Edward M. Benjamin, Def’t.

      (New York Superior Court, General Term,

      Filed April 11, 1892.)

    Usury—Bills and notes.
    The note in suit was given in renewal ofone for a similar amount dated January 1, 1884, which was given in renewal for a similar one dated January 1, 1883, which was not connected by evidence with any preceding loan or note. It appeared that a note for a similar amount had been given January 1, 1881, payable in eighteen months. Held, that usury which preceded the last mentioned note was not connected with the note in suit so as to taint it with such usury.

      Exceptions of defendant ordered heard in the first instance at general term, after verdict for plaintiffs.

      Whitlock & Simonds, for pl’ft's; Smith & Dougherty, for def’t.
   Dugro, J.

This action is upon a note for one hundred thousand ($100,000) dollars, dated January 1, 1885, payable in eighteen (18) months. The defense is usury. The exceptions were ordered to be heard in the first instance at general term.

It seems that the note made the basis of this action was given upon the surrender of one for a similar amount, dated January 1, 1884; and that the latter was given for one of a similar amount, dated January 1, 1883.

The last note is not connected by the evidence with any preceding loan or note.

It appears that on January 1, 1881, a note of one hundred thousand ($100,000) dollars, payable in eighteen months, was delivered by the defendant to the plaintiffs. This note is not sufficiently connected with the note in suit to warrant its consideration, or that of the loans which are alleged to have preceded it. The usury, therefore, which is alleged to have tainted the loans which preceded the note last mentioned is not connected by the evidence with the note in suit.

A question still remains with respect to the checks which were offered in evidence, and which were claimed to represent payments of twenty per cent, of the profits of the defendant’s business. It may be said that the evidence does not warrant a finding that they were the result of a usurious agreement.

The exceptions to rulings upon the admissibility of evidence have been carefully examined, and none of value found.

The motion for a new trial upon the exceptions must be denied, and judgment ordered for the plaintiff upon the verdict.

Sedgwick, Ch. J., and Gildersleeve, J., concur.


text:
    David J. Boehm, Resp’t, v. George P. Lies and Emil Seidenberg, App’lts.

      (New York Superior Court, General Term,

      Filed April 14, 1892.)

    1. Contract—Parol evidence to vary.
    Where a contract in writing for the sale of stock states no time for performance, the law implies that performance is to be made within a reasonable time, and such implication cannot be rebutted by extrinsic testimony going to fix a definite time, because this varies the contract:
    2. Trial—Eight to open.
    In an action upon a contract for the purchase and sale of stock, the answer set up that the agreement set forth in the complaint was not a truthful and accurate copy of the original contract, and also that defendants were induced to sign the contract through fraudulent representations of plaintiff. Held, that while the first defense raised no issue, defendants were not entitled to take advantage thereof, and in the absence of a positive disclaimer of such matter as a defense, they were not entitled to open the case.
    Appeal from judgment in favor of plaintiff, and from order denying motion for a new trial. ■

      Leavitt & Keith, for resp’t; Wise & Lichtenstein, for app’lts.
   Dugro, J.

This is an appeal by the defendants from a judgment, and an order denying a motion for a new trial.

The plaintiff’s claim was based upon a written agreement in the following terms signed by the parties to this action.

“New York, January 9, 1888.
“In consideration of one dollar to each another in hand paid, David J. Boehm and George P. Lies & Co. agree to the following:
“ That said David J. Boehm hereby agrees to deliver to said George P. Lies k Co. two hundred and fifty shares of stock of the North American Cigar Machinery Co., at the rate of thirty dollars per share, and said George P. Lies k Co. agree to accept from said D. J. Boehm said above mentioned shares of stock and pay to said Boehm the sum of seven thousand five hundred dollars for the two hundred and fifty shares of said stock.
“ D. J. Boehm,
“ Geo. P. Lies k Co.”

Having within a reasonable time tendered to the defendants the stock referred to in the agreement, the plaintiff demanded payment therefor and upon its refusal brought this action.

The defendants, for a first defense, denied that the copy agreement set forth in the complaint is a truthful or accurate copy of the original agreement, and for a further defense, alleged that they were induced to sign the contract through the fraudulent representations of the plaintiff, and by a reliance upon an oral contemporaneous agreement whereby it was agreed that no time for the delivery of the stock should be specified and that the defendants should be under no obligation to accept or pay for the stock until the machine would prove perfectly practical and thoroughly-suited to do the work, and effect the saving claimed for it by the plaintiff.

Upon the trial the defendants claimed the right to open the case to the jury, and excepted to the denial of their claim.

The first defense contained in the answer is a denial that the agreement set forth in the complaint is a truthful and accurate copy of the original contract. This denial raised no issue. It does not, however, lie with the defendants to claim that this is so. The court took their action in interposing it to have been in good faith, accepted their claim or representation that the matter set forth, if true, constituted a good defense, and proceeded with the trial accordingly.

In the absence of a clear and positive disclaimer of this matter as a defense, they cannot be heard to complain because the court in disposing of their motion accepted their view of its sufficiency. To hold otherwise would be to permit a defendant who has interposed a frivolous answer to gain an advantage thereby. If the court was misled it was through the defendants’ action.

The main question in this case is presented by the claim that the agreement of January 9th was partly oral and partly written. The oral part it is claimed was, in effect, that the plaintiff should not compel an acceptance of the stock until the machines should prove perfect and practical.

I will assume that the defendants offered evidence tending to establish the oral part of the alleged agreement.

It seems to me that if the defendants are permitted to show an oral agreement providing for the time of payment to be otherwise than within a reasonable time, they would vary the terms of the written contract.

The written agreement had a settled legal meaning as to time of performance, and this meaning it must be presumed was known to the parties and considered in the making of the contract. The law implies, as effectually as though it appeared in express terms, that performance was to be made within a reasonable time, and the implication cannot be.rebutted by extrinsic testimony going to fix a definite term, because this varies the contract. Parsons on Contracts, vol. 2, p. 794; Atwood v. Cobb, 16 Pick., 227. Thus, also, a written promise to pay money, no time being expressed, means a promise to pay it on demand, and evidence that payment at a future day was intended is not admissible. Parsons on Contracts, vol. 2, p. 552.

The general rule which excludes paroi evidence when offered to contradict or vary the terms or legal import of a written agreement is well settled. It has exceptions; and among them, claimed as pertinent, that the promisor may show that the instrument sued upon was executed in part performance of an entire oral agreement ; that the rule has no application to collateral undertakings. Engelhorn v. Reitlinger, 122 N. Y., 76; 33 St. Rep., 275; Eighmie v. Taylor, 98 N. Y., 288.

“The writings which are protected from the effect of contemporaneous stipulations are those containing the terms of a contract between the parties and designed to be the repository and evidence of their final intention. 'If, upon inspection and study of the writing, read, it may be, in the light of surrounding circumstances in order to its proper understanding and interpretation, it ap¡3ears tb contain the engagement of the parties and to define the object and measure the extent of such engagement, it constitutes the contract between them and is presumed to contain the whole of the contract. * """ * Where the writing does not purport to disclose the contract or cover it; when in view of its language, read in connection with attendant facts, it seems not designed as a written statement of an agreement, but merely as an execution of some part or detail of an unexpressed contract; where it purports only to state one side of an agreement merely, and is the act of one of the parties only in the performance of this promise ; in these and the like cases the exceptions may properly apply and the oral agreement be shown.”

Examining the character of the writing and reading it in the light of the purpose of the makers and the surroundings, we must determine whether this case falls within the exception.

Here is a complete agreement. It covers the obligations and duties of both parties, and it leaves nothing unprovided for. If it is to be controlled try evidence of the paroi stipulation alleged in the answer, its legal import as to time of performance will be varied; it will not be as the law implies from the writing, a contract to be performed within a reasonable time, but one to be performed when the machines are perfected, etc.

I think the defendant sought to vary by oral evidence á written contract, and this the court properly refused to permit.

All of the defendant’s exceptions to rulings upon the admissibility of evidence and to the charge and refusals to charge have been carefully examined and none of merit discovered. The charge presented the questions in the case fully and fairly, and though the learned chief judge stated to the jury his opinion as to certain testimony, he explained to them that they were the judges of the facts and were not to be controlled by his opinions.

The judgment and order should be affirmed.

Gildersleeve, J., concurs.


author: Gildersleeve, J. Dugro, J.

text:
    Caroline Paret et al., Resp’ts, v. The New York Elevated Railroad Co., App’lt.

      (New York Superior Court, General Term,

      Filed April 14, 1892.)
    1 Railroad—Elevated —Damages
    The next of kin of a deceased life tenant have no right of action for damages to the rental value during the continuance of the life tenancy, but such right of action passes to the executors or administrators of the 'life tenant.
    2 Same.
    An alleged loss sustained upon a sale of the property in consequence of the depreciated condition thereof by reason of the existence of the road, cannot be recovered in an action for money only.
    & Same—Inconsistent findings.
    In an action caused by the operation of an elevated road for damages to the rental valúe of premises during the life of a life tenant and subsequent thereto, and for loss of the sale thereof, the court submitted to the jury questions as to the damage during the life of the life tenant, from her death to the sale, the loss on the sale, and to find a general verdict for the aggregate of the other findings. The jury found the damages for the two periods named, that the loss on the sale was an amount equal to the aggregate of those so found, stated that they did not allow any damages as to rental value, and a general verdict for said aggregate sum. Held, that the findings were inconsistent, and that defendant was entitled to judgment thereon.
    (Dugro, J., dissents.)
    Appeal from a judgment in favor of plaintiffs, entered on the verdict of a jury, and from an order denying defendant’s motion for judgment in its favor on said verdict.

      Talcott & Meyer, for resp’ts; Davies & Rapallo (Brainard Tolles, of counsel), for app’lt.
   Gildersleeve, J.

The defendant constructed an elevated railroad in the street in front of premises No. 405 Greenwich street, in the city of New York, in 1870; and soon after it ' commenced the operation of said road, which has ever since continued. The plaintiffs here seek to recover damages to the premises in question, caused by the maintenance and operation of said elevated railroad. Hester Paret, the mother of the plaintiffs, held the premises as life tenant until December 20, 1882, when she died. It will be assumed that the plaintiffs owned the fee to the premises during the life tenancy of Hester Paret. Subsequent to the death of Hester Paret, and on October 4,1883, the plaintiffs sold and conveyed the- -premises, and on July 19, 1884, they commenced this action. No executor or administrator of Hester Paret was joined in the action and the trial court held that the plaintiffs, in their capacity of next of kin, were entitled to recover damages sustained by Hester Paret in her life time. The plaintiffs’ claim herein was (1) for loss of rental value of the premises from the time defendant’s railroad was constructed to October 4, 1883, the date when plaintiffs sold the premises, and (2) for the loss sustained in a sale of the premises on October 4, 1883, in a depreciated condition at a reduced price by reason of the wrongful acts of the defendant in constructing and operating its railroad in front of said premises. Although the complaint purports to set forth two causes of action, the second alleged cause of action (being the second claim above mentioned) is nothing more than the statement of a separate item of damages claimed to have resulted from the same wrongful acts of the defendant which formed the basis of the first cause of action.

Two species of damage, resulting from the same act, do not give two separate causes of action. Trask v. Railroad Co., 2 Allen, 331; Van Leuven v. Lyke, 1 Comst., 517; Howe v. Peckham, 6 How. Pr., 229. This view was evidently taken by the learned trial judge. In his charge to the jury, he said : “Now there are two elements of' damage which have been presented to you in this case; one is the diminution of rental value, and the other is the diminution of the proper price which the plaintiffs claim would have been got at a sale for the fee of the property but for the interposition of the elevated railroad.” Against the protest of the defendant, the trial judge instructed the jury to award to the plaintiffs damages for “ such loss of fee value of the property which they sold as was caused by the wrong doing of the elevated railway in this case.” In the charge to the jury no mention was made of two causes of action. On account of the statute of limitations, the plaintiffs’ recovery of rental damages was limited to the period between July 19,1878, and October 4,1883, the time of the sale of the premises by the plaintiffs. The jury was' instructed to render a general verdict, and to make in their discretion certain suggested special findings, as follows:

“ The jury are to find what are the damages, if any, caused by defendant’s railroad, subdivided as follows:
“ 1. For the period from July 19th, 1878, to December 20th,, 1882, with interest, if allowed, from July 19th, 1884, to date; the interest to be stated separately.
“ 2. For the period from December 20th, 1882, to October 4th, 1883, with interest, if allowed, from July 19th, 1884, to date; the interest to be stated separately.
“ 3. The amount of loss, if any, to the fee value by the sale of October 4th, 1883- with interest from July 19th, 1884, to date, if allowed; the interest to be stated separately.
“ 4. General verdict to be the aggregate of the above.”

The jury, after deliberation, rendered the following verdict in writing:

The jury make answer to the special questions submitted to them as follows:
1. For the period from July 19th, 1878, to Dec. 20th, 1882, with interest, if allowed, from. July 19th, 1884, to date, the interest to be -stated separately, three thousand two hundred and eight dollars, with interest from July 19th, 1884, to date, $1,069.
2. For the period from December 20th, 1882, to October 4th. 1888, with interest, if allowed, from July 19th, 1884, to date, the interest to be stated separately, Four hundred and twenty-six dollars, with interest from July 19th, 1884, to date, $142.
8. The amount of loss, if any, to the fee value by the sale on October 4th, 1883, with interest from July 19th, 1884, to date, if allowed, the interest to be stated separately, Thirty-six hundred and thirty-four dollars, with interest from July 19th, 1884. We have not allowed any damages as to rental value.
4. General verdict to be the aggregate of the above, or thirty-six hundred and thirty-four dollars, with legal interest from July 19th, 1884; total, $4,845.

Counsel for defendant moved upon the minutes of the court and upon the verdict as rendered for judgment in favor of the defendant, upon the ground that the verdict being against the plaintiff upon the question of damages to rental value, and damages to fee value not being recoverable in this action, the defendant was entitled to judgment. This motion was denied and exception taken. On this verdict judgment was entered awarding the plaintiff the sum of $5,333.83 damages, interest and costs. Subsequently an order was entered denying the defendant’s motion for judgment, which order is before us on appeal in connection with the appeal from the judgment.

Section 1187 of the Code of Civil Procedure provides as follows : “ Where the jury find a general verdict, the court may instruct it to find also specially upon one or more questions of fact stated in writing. The special verdict or special finding must be in writing, and it must be filed with the clerk and entered in the minutes.”

The submission of the foregoing special questions seems to have been fully authorized, and the practice pursued by the learned trial judge perfectly regular.

Section 1188 of the Code provides that “ Where a special finding is inconsistent with the general verdict, the former controls the latter, and the court must render judgment accordingly.”

If in the finding of a jury special matter follows or is followed by general matter, the verdict will be judged according to the special matter. Fraschieris v. Henriques, 6 Abb., N. S., 251. The verdict herein was a general one in favor of the plaintiff, and was controlling except so far as the special findings were inconsistent with it. Code, § 1188; U. S. Trust Co. v. Harris, 15 Super. Ct., 75. The special findings herein were inconsistent with the general verdict, and legally required the entry of a judgment in favor of the defendant. Upon the foregoing findings, as rendered by the jury, it became the duty of the court to direct the entry of judgment in favor of the defendant. Code, §§ 1188, 1189; U. S. Trust Co. v. Harris, supra; Dempsey v. The Mayor, 10 Daly, 417.

The plaintiffs have no personal right of action for damages sustained by their mother, Hester Paret, in her lifetime, and the trial judge erred in holding that the plaintiffs, in their capacity of next of kin, were entitled to recover such damages. The- devisee does •sot acquire by the devise the right to recover for injury to the rental value of real estate which happened prior to the passing of title under the devise. The right of action is a personal asset, accruing to the owner upon the happening of the injury. The executors or administrators of Hester Paret were entitled to recover the damages sustained during her lifetime, and to enforce their payment by action, if necessary, as part of the estate to be administered by them. The plaintiffs were without authority to maintain a suit for the recovery of such damages, while the right of action therefor was vested in the executors or' administrators. Griswold v. Met. El. Ry. Co., 122 N. Y., 102; 33 St. Rep., 232; Shepard v. Man. Ry. Co., 117 N. Y., 442; 27 St. Rep., 705.

The most that the plaintiffs herein would be entitled to recove» for damage to the rentel value would be such loss as was sustained by reason of the wrongful acts of the defendant between December 20, 1882, the date of Mrs. Paret’s death, to October 4, 1883, the date when they sold the property, a period of less than ten months. But this error is unimportant, because of the following finding of the jury: “ We have not allowed any damages as to rental value."

The second alleged cause of action, constituting, as we have already shown, not an additional cause of action but only a separate item of damage, presents a claim for loss of fee or selling value, which cannot be recovered in a common law action for money only. Uline v. N. Y. C. & H. R. R. R. Co., 101 N. Y., 98; Tallman v. Met. El. Ry. Co., 121 id., 119; 30 St. Rep., 491; Pappenheim v. Met. El. Ry. Co., 40 id., 445.

In the last cited case, the rights of persons in the situation of these plaintiffs is very thoroughly discussed. The court of appeals, Peckham, J., say as follows: “ Í have thus far referred to the case of the vendee for the purpose of inquiring what rights appertained to him as the present owner of that property. But the argument in favor of the vendor, who owned the .property when the road was built, and who sold his land in a depreciated market, caused by the wrongful acts of the defendants, is not to my mind very strong. In the first place, he had his right of action to recover for all damages caused by the trespass up to the time of the commencement of his action, and the subsequent conveyance of the land would not in any way affect that right. If he desired to restrain its further continuance or to recover for the permanent damage caused, he could, while owner, commence and maintain his action in equity. In that action he would obtain full relief. If he chose to sell, instead of using the remedies which the law gives him, that is a matter, legally speaking, of his own choice. The defendants did not compel or limit or restrain such sale. Nothing that they did could be said to amount to any compulsion by them. The law says their action cannot be regarded as a permanent trespass for the very reason that it is unlawful, and the law will not presume that an unlawful act is to be forever continued. Ilis choice to sell, rather than avail himself of the remedy given him by the law, does not furnish him with a cause of action against the defendants to reimburse him for the loss arising because of the presumption he has indulged in that the trespass would be continuous and unpaid for. He has chosen to regard the trespass in a light opposite to that in which the law regards it, and the loss which he has suffered thereby is not one which the law can regard as caused by the defendants.”

It is clear that the alleged loss sustained by the plaintiffs, upon the sale of the property in question, did not fall within the legal measure of damages in this case. As to the only claim of damages upon which the plaintiffs were entitled to recover, the jury found against them, and the claim which the jury found in their favor, the law declares not to be within the legal measure of damages. This situation demanded from the trial judge the direction that the judgment be entered upon the verdict in favor of the defendant. This the learned trial judge did not do.

For the reasons above indicated, the order denying defendant’s motion for judgment in its favor should be set aside, and judgment entered for the defendant upon the verdict The appeal from the judgment is dismissed, without 'costs.

We do not overlook the fact that this disposition of the case will cause the records to show two judgments herein, to wit: the one entered upon trial in favor of the plaintiffs, and the judgment here directed. There was no motion before the trial judge by the defendant to set aside the first judgment. We do not think this court should take action in respect to that judgment, upon its own motion, but deem it proper to say that this decision is without prejudice to the defendant to move at special term to set aside said judgment.

We think this decision should be without costs, since it occurs that had the action been properly tried, and an intelligible verdict rendered, a recovery for past damages, covering a period of about ten months, to wit: from December 20th, 1882, to October 4th, 1883, would have resulted.

Sedgwick, Ch. J., concurs.

Dugro, J.

(dissenting).—I agree with my associates that there can be no recovery in this action for damages other than those to rental value between December 20, 1882, and October 4, 1883. The judgment should therefore be reversed, and a new trial ordered, with costs to defendant to abide the event.

The order denying defendant’s motion for judgment upon the verdict was properly made. The special findings were inconsistent The first ánd second allowed damages to rental value, and the third contained a statement that no damages to rental value had been allowed.

It is manifest that the jury did not understand the questions upon which they passed; the verdict is conclusive evidence that this was so.

The verdict contains contradictory statements, and should not have been accepted by the court.

No judgment should have been ordered upon it.


author: Dwight, P. J.

text:
    Clarinda F. Killick, Resp’t, v. James H. Hooker, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    Conversion—Proof of.
    In an action for conversion of a cow, plaintiffs evidence showed that she owned and was in possession of the cow, and defendant took it from her possession. Defendant’s evidence showed that he took a chattel mortgage from plaintiff’s husband for rent, and sold the cow under claim that it was covered by said mortgage. There was no pretence that plaintiff signed the mortgage, nor that the cow was included in it with her knowledge or consent, nor that she was present when it was sold. Held, that while plaintiff’s evidence alone was not sufficient to establish a conversion, the necessary proof was furnished by the evidence given on defendant's part, and that plaintiff was entitled to recover,
    , Appeal from a judgment of the county court of Monroe county affirming a judgment of a justice’s court.

      Q. Van Voorhis, for app’lt; P. McIntyre, for resp’t.
   Dwight, P. J.

The action was for the wrongful conversion of a cow. The return is extremely meagre in the details of the testimony, but the undisputed evidence on the part of the plaintiff shows that before the commencement of the action she owned and was in possession of the cow, of the value of thirty-five dollars, and that the defendant took it from her possession. This was evidently not enough to establish a wrongful conversion of the property, because it was consistent with the theory that the defendant had bought the cow of the plaintiff, or taken it on a contract of bailment, with her consent; and if the defendant had suffered the case to stand there, a judgment for the plaintiff could not have been sustained. But without moving for a nonsuit he went on to give evidence in his own behalf. This evidence is very briefly returned, but it plainly indicates that he had rented his farm to the plaintiff’s husband the spring before, had required security for the rent, had taken a chattel mortgage from Killick as such security and had sold-the cow in question under the claim that she was covered by the chattel mortgage. There is no pre tence that the plaintiff signed the chattel mortgage, nor any evidence that the cow was included in it with her knowledge or consent, and the plaintiff testifies that she forbade the defendant to put that cow in the mortgage. Here there was an attempted justification of the taking which failed to justify, but, on the contrary, tended to show a wrongful conversion of the property, by a sale on a chattel mortgage which either did not cóver the property in question, or did so without the consent of the plaintiff. Neither was there any evidence that the plaintiff was present at the sale or knew of it, so that it cannot be contended that she in any manner waived her right to reclaim the property or to complain of its conversion.

Making due allowance for informality of proof in an action tried by a justice of the peace without the aid of counsel learned in the law, the plaintiff’s cause of action seems to have been reasonably established, and the judgment should be affirmed.

Judgment affirmed, with costs.

Macomber and Lewis, JJ., concur.