source: Caselaw Access Project

author: BISCHOFF, J.

license: Public Domain

text:
    Alfred Stern v. Benjamin Newman.
    (Supreme Court, Appellate Term, First Department,
    July 28, 1896.)
    Set-off and cotjntebclaim—When allowable.
    Defendant purchased property from plaintiff’s assignor. From the purchase money was deducted—First, a sum believed by both parties to be the amount of the mortgage on the property given by the seller; and, second, a further amount, from which defendant was to pay certain other charges against the property, which hath not been ascertained. The balance of the purchase money was paid in cash. It afterwards appeared that the amount of the mortgage debt was greater than the parties supposed. Held, that such excess of the mortgage debt would be set off against balance of the second sum retained by defendant after payment of charges for which it was retained.
    Appeal from First district court.
    Action by Alfred Stem against Benjamin Newman. There-was a judgment in favor of plaintiff, and defendant appeals. |
    Action to recover upon an agreement whereby the defendant-promised to pay to' the plaintiff’s assignor the overplus of a sum which it was mutually agreed by the parties named should be retained by the defendant out of the purchase money to be paid by him upon the sale of personal property; the sum so retained to be-applicable to the payment of certain charges, the amount of which was unknown at the time. The defendant pleaded a counterclaim alleged to have accrued to him against the plaintiff’s assignor from the payment, under a mutual mistake of fact, of a sum in excess of the purchase money agreed to be paid by the former-upon the sale above alluded to.
    Louis Cohen, for app’lt; John Callahan, for resp’t.
   BISCHOFF, J.

In November, 1894, one Jackson, the plaintiff’s assignor, agreed to sell hiseajoon, at No. 198 William street, in the city of New York, to the defendant, for $8,750, out of which sum there was to be allowed the amount due upon an existing mortgage of the fixtures made by Jackson to the Budweiser Brewing Company. The sale was consummated by the delivery of a bill of sale and the transfer of the possession of the saloon to the defendant, and at the time the latter deducted from the purchase money—Firstly, $6,478, believed by both parties to be.the amount of the mortgage debt alluded to; and, secondly, $250, retained under a special agreement then and there entered into, whereby the defendant was to apply so much of such sum as was required to discharge certain arrears of water rents, the amount of which had not been ascertained, and to pay the overplus, if any, to Jackson. The residue of the purchase money was paid in cash and notes since transferred to third persons, and also paid. The water rents subsequently proved to be but $110, and the actual amount of the mortgage debt $6,782.50, which last-mentioned sum the defendant paid by his own promissory notes to the Budwedser Brewing Company, secured by a new mortgage of the same fixtures, executed by him. In this action by Jackson’s assignee to recover the surplus of the sum retained by the defendant to satisfy the arrears of water rents, the latter sought to avail himself of the sum paid by him in excess of the sum agreed to be paid upon the sale and purchase of the saloon, owing to the mistake with regard to the amount of the mortgage debt.

The facts narrated above appear from uncontroverted evidence at the trial, and are not challenged upon this appeal. Indeed, the only grounds upon which the plaintiff’s counsel asks us to uphold the judgment in his client’s favor are that there was no proof of an assignment of the mortgage debt to the defendant, that the latter’s payment of such debt did not inure to Jackson’s benefit, and that non constat Jackson is not under a continuing liability to the Budweiser Brewing Company therefor. Obviously, the plaintiff’s counsel and the court "below totally misapprehended the defendant’s claim. It was not that, by subrogation or assignment, he was entitled to demand and receive from the plaintiff’s assignor, Jackson, any part of the latter’s indebtedness to the Budweiser "Brewing Company, but that owing to the mutual mistake of fact with regard to the amount of the mortgage debt, which at the time of the sale of the saloon was a lien upon the fixtures thereof, and plaintiff’s assignor had received from the defendant $304.50, which, ex aequo et bono, he was bound to return at the time of his assignment of the overplus of the sum retained by the defendant to satisfy the arrears of water rents. 18 Am. & Eng. Enc. Law, 225, etc.; Keener, Quasi Cont. 26. The sum paid by the defendant in excess of the agreed purchase money upon the sale of the saloon was recoverable by him in an action ex contractu, as for money had and received by the plaintiff’s assignor to his use. Roberts v. Ely, 113 N. Y. 128; 9 St. Rep. 796. And the cause of action was equally available to him as a counterclaim, to the extent of the plaintiff’s demand. Code Civ. Proc. §§ 501, 502.

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

All concur.


author: PER CURIAM.

text:
    John Dunlay v. American Telephone & Telegraph Co.
    (Supreme Court, Appellate Division, Third Department,
    April 27, 1896.)
    Action in forma Pauperis—Stipulation by attorneys.
    An action granting leave to an infant to sue as a poor person cannot be set aside merely on the stipulation of the attorneys of the parties, and on motion of plaintiff’s attorney, where no affidavit of the facts was filed.
    Appeal from special term, Albany county.
    Action by John Dunlay, an infant, by Isaac McConihe, Ms •guardian ad litem, against the American Telephone & Telegraph Company, for personal injuries. From an order denying a motion made by Daniel Dunlay, temporary guardian of plaintiff, to compel plaintiff’s attorney to pay over to the temporary guardian the sum of $600, the full amount of the judgment recovered in the action, and from a further order to vacate and set aside as irregular an order wMch vacated and set aside a certain other arder allowing plaintiff to prosecute the action as a poor person, the temporary guardian appeals.
    Abbott H. Jones (Edwin A. King, of counsel), for app’lt; Warren McConihe, for resp’t.
   PER CURIAM.

—The guardian ad litem in this action was appointed on the 4th April, 1895, on the application of the appellant, Daniel Dunlay, the father of the infant, who was then about eight years old. Upon the same day upon the petition of the guardian ad litem, an order was mde at special term that the plaintiff be adjudged to prosecute as a poor person the present action; and an attorney was assigned to act as attorney for the plaintiff, in accordance with the provisions of section 460 of the Code of Civil Procedure. The action was immediately commenced •by’ the attorney named. Issue was joined, and on the 31st May, 1895, the case was on the day calendar of the May term of the Rensselaer circuit. At that date, upon a stipulation signed by the plaintiff’s attorney and by the defendant’s attorney, and on motion of the plaintiff’s attorney, an order was made at the circuit that the order of April 4, 1895, allowing the plaintiff to sue as a poor person, be vacated and set aside. This order was filed on the 18th June, 1895. In the meantime, and on the 5th June, the case was tried, and a verdict was recovered in favor of the plaintiff for $600; and on the 6th June, 1895, judgment was entered thereon for the amount, together with $146.09, costs. This judgment was paid to the plaintiff’s attorney, and by him discharged of record prior to the 18th June. On the 24th December, 1895, an order was obtained at special term by the plain-tiff’s attorney that the order of May 31, 1895, be filed nunc pro tunc as of the day it was granted. The appellant was appointed temporary general guardian on the 19th November, 1895, and thereupon made a motion at special term to vacate the order of May 31, 1895, and to require the plaintiff’s attorney or the guardian ad litem to pay over to the general guardian the amount of damages recovered in the action. This motion was in all things denied, and the general guardian appeals.

It is apparent from the papers that the plaintiff’s attorney obtained the order of May 31, 1895, in order to enable him to receive from an expected recovery a greater compensation for himself or counsel than the law under which he was assigned to act permitted. Code Civ. Proc. §§ 460-467. The only basis of the order of May 31st was the stipulation of the attorneys. No affidavit of the facts was filed. It is not shown that the father of the infant, even if he had authority so to do, ever assented to the change of basis upon which the plaintiff’s attorney was assigned to prosecute the action. Nor does there appear in the papers before us any satisfactory reason for the change. We are of the opinion that the order of May 31, 1895, was improperly granted.

It is conceded by the counsel for the appellant that a guardian ad litem in a proper case may be reimbursed his necessary and proper expenses upon behalf of his word in event of recovery., even though the ward sue as a poor person.

Order appealed from reversed, with ten dollars costs and disbursements, and motion to vacate the order of May 31, 1895, granted, with ten dollars costs; said costs to be paid by the attorney for the plaintiff personally, and proceedings remitted to special term for the determination of what allowances should be made to the guardian ad litem for expenses.

All concur.


author: DALY, P. J.

text:
    Patrick O’Dowd v. Roger V. Bonnell.
    (Supreme Court, Appellate Term, First Department,
    July 27, 1896.)
    Appeal—Weight op evidence.
    A finding of a justice of the district court on conflicting evidence will not be disturbed on appeal.
    Appeal from the Eleventh district court.
    Action by Patrick O’Dowd against Roger V. Donnell to recover for work and labor in steam fitting in No. 251 Fifth avenue in November, 1894. Judgment was rendered in favor of plainr tiff for $37.50 and costs, and defendant appeals. Affirmed.
    P. C. TaLman, for app’lt; Thornall & Hull, for resp’t.
   DALY, P. J.

—The plaintiff was employed by the defendant to remove steam radiators from one part of the building to another part, and connect them with the main steam pipe. He used for the purpose about ten feet of old pipe which he found on the premises. A leak was discovered from the work a week or ten days afterwards, and some repairs were made by the janitor, who had worked as a steam fitter’s helper, and who testified that there was twine and packing round the valves, and that he took out the valves and put in new ones, and that he subsequently told plaintiff several pipes were spilt, and the elbows and nipples not fixed, and there was no valve there. In January, following, the work was examined by an engineer, who testified that the connecting pipe was split, and that the radiator was not connected with it at the elbows. The plaintiff testified that the work was properly performed,—he having done some part of it personally, and having tested it,—and that there was no twine or packing round the valves; that he was directed by the defendant to use the old material on the premises, but that the pipe he put in appeared to be all right. The defendant denied that plaintiff was restricted to the use of old material. The case presented a conflict of evidence, and, as the justice had the witnesses before him, he was better qualified than we to determine the-credit to be given to their testimony. While the statement of the engineer who examined the work in January was specific as to the defects found, it is not certain that the plaintiff was responsible for them. It was proved that a split might occur in a pipe at any time after it was laid; and in view of the fact that the janitor, Titus, who may not have been well qualified for the purpose, worked at the valves, and investigated the connections, between the time plaintiff finished his work and the engineer examining the radiators, it was not clear that the latter saw the connections in the condition plaintiff left them. The judgment should be affirmed.

All concur.


text:
    Louis Helmuth v Edward H. Apgar et al.

    (Supreme Court, Appellate Term, First Department,
    July 27, 1896.)
    A refusal to dismiss the complaint at the close of plaintiff’s case is not reviewable on appeal, unless the motion to dismiss was renewed at the close of the whole case.
    Appeal from the ¡Ninth district court.
    Action by Louis Helmuth against Edward H. Apgar, Henry C. Wliitemeyer, and Louis J. Apgar to recover for services rendered by plaintiff as a traveling salesman in the months of January and February, 1896. Judgment was entered on a verdict in favor of jdaintiff 'for $170, and_ defendants appeal. Affirmed.

      Robert B. Alling, for app’lts; David Gordon, for resp’t.
   DALY, P. J.

Plaintiff was taken on trial as traveling salesman for two months, over certain territory, his compensation to be fixed at the end of that time. It was proved that his sales amounted at least to $1,988.90, on which the profits were $190, and that his traveling expenses were about $168. Defendants offered him $50 for his services which he declined, and this action was brought to recover their value. The jury awarded $170, and defendants appeal on the ground that, according to plaintiff’s version of the agreement, there was a special contract, by which his compensation depended upon the result of his sales as compared with the compensation and sales of his predecessor over the same route and for the corresponding period of the previous year, which were proved to have been: Salary, $100 per month; sales, $5,674.06; and profits,, $637.24; traveling expenses not given. The argument for the appellant is that, as the sales of plaintiff were about one-third of his predecessor’s, his compensation should be in proportion, or $33.33 per month, instead of at the rate of $20 per week, awarded by the jury. But the record before us does not show a special contract for compensation based upon figures and determined by the rule of three. Defendants do not so testify. Mr. Apgar says they were to advance his traveling expenses, and determine upon his salary at the end of two months. Mr. Whitemeyer says that, as far as plaintiff’s own personal salary was concerned, it would be dependent entirely upon the result of his work. This is no more than saying what is true in every case where an employe is taken on trial, and the question of pay is left open to be fixed at the end of the prescribed time, namely, that the pay would depend upon the amount of work done as tested by results. The appellants rely upon the answer given by plaintiff on cross-examination to the question, “So that you finally decided in said talk with those parties that what you were to receive was to be determined upon the result of the sales?” to which plaintiff answered, “As compared with the salary and work done over that territory last year.” This was a conclusion of the plaintiff, and does not give the language employed. What was in the defendants’ minds was something quite different, as conclusively appears from the fact that they did not offer him compensation based upon the proportion above referred to, but a smaller amount which, under the contract, they deemed to be the fair value of his services. And the case was tried upon the theory, not of a special contract, but that plaintiff was required to prove value. At the close of his evidence a motion to dismiss was made on the ground that there was no proof of the value of the services. The objection that he was only entitled, under the agreement, to a certain sum ascertainable by computation, was not taken, and seems to be made for the first time on appeal. The verdict cannot be disturbed, since the case was submitted to the jury without objection on instructions from the justice, which left it to them “to fix what compensation the plaintiff is entitled to if the jury believed he was entitled to anything,” and that “there was no amount agreed upon for compensation at the time he entered the employ of the defendants,” that it was the duty of the jury “to determine what, if anything, is due him,” and they “must fix the amount of it under the evidence,” and that “the plaintiff testifies that those services are worth, according to the market value paid for such services, the sum of $30 per week.” Having ac- . quiesced in the submission of the question of value to the jury, 1 and their finding being within the figures testified to by plaintiff, no ground for reversal appears.

An exception was taken to the allowance of the question put to the plaintiff as to the value of his services, but no ground of objection was stated. The plaintiff, being employed as traveling salesman, was competent to testify what his services were worth. If the objection was to his basing his testimony upon information derived from others, it should have been specified, in order that the question might be framed so as to be unobjectionable.

The exception taken to the refusal to dismiss the complaint at the close of plaintiff’s case is not available, as it was not renewed at the close of the whole case, and defendants thereby conceded that there were questions of fact for the decision of the jury.

The judgment must be affirmed, with costs.

All concur.


author: McADAM, J.

text:
    Henry C. Copeland v. Penelope A. Luttgen.
    (Supreme Court, Appellate Term, First Department,
    July 27, 1896.)
    Appeal—What review able—Refusal to dismiss complaint.
    A lessee who leaves demised premises, but does not surrender possession until four months later, during which time she endeavored to procure a tenant, cannot claim exemption from liability for rent on the ground that the premises had become untenantable when she left them (Laws 1860, chap. 345), as the surrender must be within a reasonable time. __
    Appeal from Eleventh district court.
    Action by Henry 0. Copeland against Penelope A. Luttgen for rent. There was a judgment in favor of defendant, and plaintiff appeals.
    C. H. Butler, for app’lt; D. T. Kimball, for resp’t.
   McADAM, J.

—The action is for rent of the suit of rooms described as the second floor of the apartment .house Ho. 1030 Boulevard, this city, for the months of February and March, 1896. The hiring was under a written lease for one year from October 1, 1895, at $35 a month, payable monthly in advance. The defendant was allowed to take possession some time about the middle of September, 1895, and remained in possession until the 18th of October, following, when she moved away. She then put the apartments in the hands of agents for rent, and, being unsuccessful in finding a satisfactory tenant, placed her aunt, about January, 1896, in possession; telling her the apartments were unhealthy, and that she could have the use of them free of charges or the unexpired term of the lease. The aunt remained in possession until about February 7th, following, when the defendant sent a letter to the plaintiff, notifying him that she and the person she had placed in possession had been compelled to vacate the premises on account of the unhealthfulness of the same. The defense was that the premises became untenable without any fault or neglect on the part of the tenant, whereupon she quit and surrendered possession of the same, as authorized by chapter 345 of the Laws of 1860. The act referred to is a remedial statute, in this: • that it relieves the tenant from the rigorous rule of the common law, which holds him to the payment of rent notwithstanding the building rented may be destroyed or become untenantable, and permits him, in such event, to quit and surrender possession of the demised premises. It gives to the tenant the option, when the demised premises are no longer capable of beneficial enjoyment, to terminate and annul the lease, and, by a surrender of the premises, leave the parties, in respect to the future use and occupation of the same, as if no lease had ever been made. Johnson v. Oppenheim, 55 N. Y., at page 285. In the case cited the court (at page 290) said:

“The tenancy is not made absolutely to cease, except at the option of the tenant. He is relieved of his obligation, if he chooses to avail himself of the provisons of the act, or he may perform the covenants of his lease, and retain the benefit of it; but he cannot have the benefit of the law, and at the same time repudiate his obligations. If he elects absolution from his obligations, the act, by necessary implication, imposes as a condition the surrender of the premises.”

Where the landlord suffers acts to be done which malte it necessary for the tenant to remove, they are considered, under the statute, as tantamount to a constructive eviction. Tallman v. Murphy, 120 N. Y. 345; 31 St. Rep. 483. And in order to make such a defense available there must be an abandonment of the premises. Boreel v. Lawton, 90 N. Y. 293; Wyckoff v. Frommer, 12 Misc. Rep. 149; 33 N. Y. Supp. 11. It is not necessary for us to decide how far the appeal should be controlled by the principles declared in Daly v. Wise (Com. Pl.), 7 N. Y. Supp. 902; Sutphin v. Seebas, 12 Daly, 139; Coulson v. Whiting, Id. 408,—and kindred cases cited by the plaintiff; for, assuming that the defendant proved that the premises were untenantable, within the meaning of the act of 1860, prior to the time she removed therefrom, in October, 1895, and that she was justified in such .removal, of became her duty, if she desired to avail herself of ■the privileges of the statute, not only to quit, but to surrender possession of the premises to the landlord. Instead of doing this, she employed agents to find an occupant in her stead, and finally placed her aunt in possession; and the latter, as before stated, regained therein until February 7, 1896. The defendant not ■only did these things in affirmation of her tenancy, but paid the rent up to and including the month of January, 1896; asserting by her acts, as strongly as it was possible for her to do so, that she did not choose to exercise the option given by the statute, but elected to perform the covenants of the lease and retain the benefit ■of it. The case is analogous to that of a tenant defrauded in a hiring. He has a reasonable time after the discovery of the fraud within which to rescind. It is optional with Mm whether he will hold on or throw up the lease. If he elects the latter course, he must make his election by returning to the landlord the possession of the property, or, in default thereof, his right to repudiate the hiring is lost. Carhart v. Ryder, 11 Daly, 101; Schiffer v. Dietz, 83 N. Y. 300; LaFollette v. Roble, 13 Misc. Rep. 574; 34 N. Y: Supp. 955; 8 Am. & Eng. Enc. Law, 853; Cobb v. Hatfield, 46 N. Y. 533; Masson v. Bovet, 1 Denio, 69; Lee v. Oil Co., 126 N. Y. 579, 586; 38 St. Rep. 662. The defendant claims to have ■effectuated her surrender by leaving the keys with the janitress of the house, but the landlord immediately wrote to the defendant that the janitress had no authority to accept the keys, and that he declined to do any act or thing which would imply acceptance. The acts of dominion over the premises continued up to February 7,1896; were voluntary on the part of the defendant, and not induced by any promise held out by the landlord; nor were they explained away by the making of continued but unsuccessful efforts to remedy the defects of which the tenant complained. The justice found for the defendant, placing his decision on the ground “that the premises were rendered uninhabitable, owing to the presence of foul and noxious smells, caused probably 'by defects in plumbing, which produced illness among the members of the defendant’s family.” The defendant and her family removed from the premises-on October 18, 1895, and the infirmity in the defense is that she did not then surrender as well as quit the premises. The finding is not based on any untenantableness existing •at the time of the abandonment, in February, 1896. ■ Indeed, the answer, which is in writing, avers that the alleged eviction -occurred October 18, 1895, and the condition of the premises prior to and at that time seems to form the chief grievance of the-defendant. Another significant fact is that the rent for February was payable in advance, and the abandonment seven days after it became due was no defense whatever as to that particular month. Giles v. Comstock, 4 N. Y. 270; Cole v. Sanford, 77 Hun, 198; 59 St. Rep. 763; Johnson v. Barg, 8 Misc. Rep. 307; 28 N. Y. Supp. 728; Pearson v. Gillotte, 15 St. Rep. 395; O’Brien v. Smith (Sup.), 13 N. Y. Supp. 408.

It follows that the judgment must be reversed, and a new trial ordered, with costs to the appellant to abide the event.

All concur.


text:
    Henry H. Jackson et al. v. Frederick Doherty.
    (Supreme Court, Appellate Term, First Department,
    July 27, 1896.)
    Landlord and tenant—Abandonment and surrender by tenant.
    In an action for rent, a bill of particulars of a counterclaim for injuries to certain property caused by the negligence of the landlord does not authorize a judgment for defendant on the ground that, in consequence of the landlord’s failure to keep his agreement, the difference in the value of the use of the premises as they were, and as the landlord agreed to put them, equaled the amount of rent sued for.
    Appeal from First district court.
    Action by Henry H. Jackson and others against Frederick Deherty for rent. There was a judgment in favor of defendant, and plaintiffs appeal. Reversed.
    George P. Gordel, for app’lts; George B. Ashley, for resp’t.
   McADAM, J.

The action is for $160, a balance due for rent of premises No. 163 Lafayette avenue, Brooklyn, under a written lease for a term commencing October 15, 1895, and terminating-May 1, 1897. By one of the covenants of the lease the tenant, is to do all repairs to the premises, and to keep them in repair. Prior to the execution of the lease, however, the tenant examined, the premises, and found they needed repairs, and the landlords, conceded on the trial that “whatever fixing needed to be done”' they would do. It is evident, therefore, that the parties understood that the landlords should first put the premises in good repair, and that by the covenant of the lease the tenant was to keep-them in that condition. On October 3,1895, four days after the lease was executed, the plaintiffs wrote to the tenant’s mother respecting the house, requesting her to call and malee the lease, so that they could “get the men to work immediately;” referring no doubt to their agreement to put the premises in repair. The plaintiffs apparently neglected this duty, for a letter and two> postal cards were mailed by them after the lease was executed, promising to send the painter and plumbers to attend to whatever was to be done. The action was brought March 19, 1896, and the defendant is said to have abandoned the premises shortly afterwards, the exact date not appearing. The pleadings were oral, the complaint being, “Bent due,” and the answer, “General denial. Counterclaim.” The defendant furnished a bill of particulars by order of the court, in amplification of his pleading, in these words:

Damage caused by falling of the ceiling in front parlor, the result of defective plumbing known to plaintiffs, and by them agreed to be repaired, but neglected,- as follows:

Parlor lamp destroyed.......................... $35 00
Injury to piano-forte............................ 15 00
Injury to carpet............................... 100 00
Injury to other furniture........................ 40 00
Bric-a-brac and ornaments broken................. 15 00
$205 OO

The effect of the bill of particular’s was to restrict the proofs, and limit the recovery to matters set forth in it. Bowman v. Earle, 3 Duer, 691; Matthews v. Hubbard, 47 N. Y. 428; 2 Wait,: Prac. 252; Wait v. Borne, 123 N. Y. 592, 608; 25 N. E. 1053.The justice admitted whatever proof the defendant offered upon . the items of damage claimed, and in rendering judgment said:

“The tenant was justified in leaving, and, though he cannot recover for the damage he sustained from injury to his carpets or other property, he is entitled to a reduction of rent caused by the impaired value of the premises because of the landlord’s failure to repair. Taking into consideration all the testimony, I think that in consequence of the landlord’s failure to keep his agreement, the difference in the value of the use of the premises as they were and as the landlord agreed to put them is, fairly, at least the amount sued for.”

The justice therefore disallowed every item of damage set forth in the defendant’s bill of particulars, and extinguished the plaintiffs’ claim of $160 for rent due according to the terms of the written lease because of the breach of the independent agreement made before the letting to put the premises in repair. There are two objections fatal to this ruling. In the first place, the damages allowed are not claimed in the bill of particulars, which, by its terms, restricted the counterclaim to the consequences of defective plumbing or negligence. And, secondly, there was no evidence offered establishing in dollars and cents between what the premises would have been worth with the repairs made and their actual value without them. If this item of damage had been stated in the bill of particulars, or the parties had, without objection, litigated the same, and the evidence warranted the finding made respecting it, the judgment might be affirmed. But, in the absence of evidence upon the subject, except that inferable from the fact that premises in' tenantable repair are presumably worth more than premises not in such condition, there'is no legal basis for holding that the difference amounts to $160, the amount ■fixed by the justice, or any other sum. When the action is for breach of covenant it is well established that the damages to be recovered must not only be averred, but must be shown with reasonable certainty, and not left to speculation and conjecture (Neary v. Bostwick, 2 Hilt. 517, and cases cited), and, if not so substantiated, the party must be content with nominal damages.

The judgment must therefore he reversed, and a new trial ordered, with costs to the appellant to abide the event.

All concur.


text:
    Richard M. Bent v. Frank Glaenzer et al.

    (Supreme Court, Appellate Term, First Department,
    July 27, 1895.)
    Code Civil Procedure, section 948, providing when a transcript ol a judgment of a justice of a peace in an “adjoining” state may be received in evidence in New York, applies only to contiguous states.
    Appeal from the First district court.
    Action by Richard M. Bent, as assignee of George 0. Gregg, -etc., against Frank Glaenzer and others, on a judgment of a justice of the peace in the state of Ohio. Judgment was rendered in favor of plaintiff for $212.81, with interest and costs, and defendants appeal.
    Thomson & Allen, for app’lts; Francis G. Moore, for resp’t.
   DALY, P. J.

—The plaintiff sued upon a judgment rendered by a justice of the peace in Xenia township, Greene county, Ohio, and offered as evidence of such judgment the proof and authentication prescribed by Code Civil Proc. §§ 948, 949, in the case of a judgment rendered by a justice of the peace within an adjoining state. Objection was duly made and overruled, and the question upon this appeal is as-to the competency of such proof.

The provision of section 948 of the Code is substantially:

“A transcript from the docket book of a justice of the peace within an adjoining state, of a judgment rendered by him; a transcript of liis minutes of the proceedings in the court previous to the judgment "x" * * when subscribed by the justice and authenticated as prescribed in the next section, is presumptive evidence of his jurisdiction and of the matters shown by the transcript.”

The next section requires a certificate of the justice to be annexed to the transcript to the effect that it is in all respects correct, and that he had jurisdiction of the cause, and a certificate of the clerk or prothonotary of the county in which the justice resided at the time he rendered the judgment, under his hand and the seal of the court of common pleas or other county court of the county, to the effect that the person subscribing the certificate attached to the transcript was, at the date of the judgment, a justice of the peace of that county, and that the signature thereto is in his own handwriting. These requirements were complied with by the plaintiff in the present case, but were objected to as inapplicable, on the ground that Ohio is not an adjoining state to New York.

Judged by the plain reading of the statute and the common use and meaning of the words employed, the objection is well taken. According to Webster*, “adjoin” means “to lie or be next in contact; to be contiguous;” “to join or unite to; to lie contiguous to; to be in contact with; to attach; to append.” And in this sense Ohio no more adjoins New York than California or Texas does. .Judicial interpretation of such a provision is found in the reports of this state. Where the question was as to authority, under the Itevised Statutes, of a justice of one town to act in the “next adjoining” town, it was held that the towns of Marathon and Virgil, in this state, were next and adjoining each other, because they touched and came in contact. Holmes v. Carley, 31 N. Y. 289. And where the question was as to the jurisdiction of a justice residing in the town of Hoosick, the parties to the action residing in the town of Schaghticoke, it was held that the said towns do not adjoin each other, 'they being separated by the town of Pittstown. Houghtaling v. Groesbeck, 51 N. Y. 673. New York and Ohio do not adjoin, being separated by Pennsylvania. The word, as used in the statute, signifies actual contact, physical and material, according to the ordinary understanding of men. Holmes v. Carley, supra. The argument to the contrary advanced by respondent is that the intention of the legislature w'as to extend the Code provision to all the states, and that evidence of this intention is found in the title of the statute (Code Civ. Proc. chap. 9, tit. 4, art. 3), “Proof of a document remaining in a court or public office of the United States, or executed or remaining without the state,” and the title of the original enactment from which the Code provision is taken .(Laws 1836, chap. 439), “An act in relation to the proof of judgment rendered before justices of the peace in. other states.” The title is no part of an act, hnt the object of the act is often avowed in the title (Dwar. St. 265); and, if the titles-of these statutes indicated a contrary intention to that -expressed in the body of the acts, the argument would have force. But the titles do not unequivocally indicate an intention to apply the act to judgments rendered in all the states of the Union. The terms “other states” and “without the state” are not inconsistent with a restriction to certain other states particularly described. Had it been the intention -of the codifi-em to apply the Code provision to the judgments of the justices of all the states, nothing would have been easier. The re-enactment of the restrictive language of the former statute is evidence of an intention to do otherwise. It is argued that the provision in question, being remedial, should be liberally construed, “to prevent a failure of the remedy.”" Dwar. St. 231; End. Interp. St. 107. The rule which prescribes that statutes in derogation of the common law must be strictly construed does not apply to Code, § 3345; but there is no question here of failure of remedy. At common law, actions upon a judgment obtained in a justice’s court of a sister state may be maintained in the courts of 'this state upon proof of the statute giving the justice jurisdiction (Thomas v. Robinson, 3 Wend. 267); and the plaintiff can prove his judgment under the common-law rules without the assistance of the Code. His remedy, therefore, is unaffected . It is only a question of convenience.

The judgment must be reversed, and a new trial ordered, with costs to abide event.

All concur.


text:
    Frank Glen v. Abram Winters.
    (Supreme Court, Appellate Term, First Department,
    July 27, 1896.)
    Pleading—V abiance.
    One who hires a- coach, with horses and driver, to another, is liable for injuries, caused by the defective condition of the coach, to a person riding in it at the invitation of the hirer.
    Appeal from First district court.
    Action by Frank Glenn, an infant, by his guardian ad litem, against Abram YGnters, for personal injuries. There was judgment in favor of plaintiff for $99 damages, besides costs, and defendant appeals. Affirmed.
    Couch & Murphy, for app’lt; M. E. Harby and Logan, Clark & Demand, for resp’t.
   DALY, P. J.

—The plaintiff was injured by the overturning of a coach belonging to defendant, and driven by his employes, - and hired by him to a social club for a day’s excursion. The plaintiff, a minor, was invited by a member of the club to ride in the coach on the return journey. The questions to be determined by the justice on the evidence were whether the overturning of the coach was caused by its condition when it left the defendant’s stable, or by overloading, and the disorderly conduct of the passengers. The finding of the justice was in favor of the plaintiff, on conflicting testimony as to the facts, and is sustained by competent proof. It was proved by two witnesses (Keane and Petty) that one or both hind wheels of the coach dragged before the coach started on the excursion in the morning, and that this was due to want of greasing of the axles. This testimony, if believed, afforded reasonable ground for inferring that ordinary care had not been exercised in preparing the vehicle for the work before it left the defendant’s stable. These witnesses were experienced drivers—one had formerly driven a truck for over sixteen years, and the other had driven a coach, off and on, several. years,—and they would therefore be intelligent observers of the coach and its running gear. They swore that the attention of the drivers was called to the condition of the wheels. The drivers admitted that they were told that the wheels dragged, but explained it by saying that the brake was applied at the time. Keane and Petty could not have failed to observe the fact, if it were so, and they testified that they did observe that the 'brake was not then at the wheel. These witnesses, who were experts, testified that the dragging of one wheel would cause the upsetting of the coach. It was shown that, just before the accident, sparks were seen coming from the wheel. It is questioned by appellant whether the upsetting could be caused by the dragging of a wheel, .and, <as the witnesses in question had differed as to the wheels which they saw dragging he argues that the dragging of both wheels would not cause the coach to overturn. The defendant’s ■driver, however, testifies that the coach would tip over if the brake was applied when it began to sway. The application of the brake would cause one or both wheels to drag, and the justice might reaoonably find that, if the wheel or wheels dragged from wanlt of greasing, the coach might be equally liable to tip over. The defendant endeavored to show that a swaying motion was given to the coach by disorderly conduct on the part of the passengers who overcrowded it on top. It was conceded that it could carry thirty persons (including the drivers), and that twenty-eight might be seated on top; there being five seats, each holding four persons. The driver testified that he should judge there were thirty persons on top, but then his opinion was that it could only carry ten there in safety. This was opposed to the fact as testified to by the other witnesses for defendant, who stated that it would carry twenty on top. The driver’s testimony, therefore, was to he taken with some allowance for exaggeration. Opposed to the charge of overcrowding was the testimony of Luttrell and St, George, witnesses for plaintiff, that the passengers on top were all' seated comfortably, and there was no crowding. The same conflict is found with respect to the charge of disorder, and the finding of the justice on ali these disputed points should not be disturbed.

As the accident to the coach was not caused by the mismanage- . ment of the drivers, no question as to whether they were or were not, while driving for the club on this excursion, the servants of'. the club, and not of the defendant, can affect the right of plaintiff to recover. The injury sustained was due to the breach of' defendant’s duty to furnish a reasonably safe machine, in good order for the purpose for which it was hired. For this breach of' duty the defendant is liable to a guest of the club, as well as to one of its members, and plaintiff was lawfully on the coach as a guest of a member. The coach was hired by a social club for an excursion, without any stipulation against inviting guests. There were women in the party, and it would be repugnant to reason to hold that for an injury to the wife, family or friend of a member, there could he no recovery agains the owner of the coach under circumstances which would justify a recovery by the member. It might fairly he implied from the hiring of the coach for an excursion that there was an understanding on both sides that it was not to he used, not only by members of the club, hut by ; their guests; and the same duty was owing to one as to the other, ; namely, the exercise of reasonable care in providing a machine fit for the purpose for which it was hired. The defendant would not he liable to a stranger; that is, a person not connected with the club, or a member of the club, and not carrying out some right which the club or its members had in using the coach pursuant to the contract. Where amaileoach was constructed under a contract with the postmaster general, and was delivered and used in the mail service, and was driven by an employe of a party who had a separate contract with the postmaster general for horsing the coach, it was held that the driver could not recover for injury received by the upsetting of the coach owing to some latent defect in its construction, as the coach maker owed him no duty. “Unless we confine the operation of such contract as this,” said Lord A'binger, “to the parties who entered into it, the most absurd and outrageous consequences, to which I can see no limit, would ensue.” Winterbdttom v. Wright, 10 Mees. & W. 109). “There would he no bounds to actions and litigious intricacies, if the ill effects of the negligence of men may be followed down the chain of results to the final effect.” Bank v. Ward, 100 U. S. 195, The maker of a steam boiler was held liable only to the purchaser for want of care or skill in its construction after delivery and acceptance, and a third person injured by an explosion due to such negligence has no action against the manufacturer. Losee v. Clute, 51 N. Y. 494. A person injured by the fall of a building which had been negligently remodeled by a contractor, and turned over to the owner long prior to the accident, has no cause of -action against the contractor. Daugherty v. Herzog (Ind. Sup.), 44 N. E. 457, 458: “If the contractor who erects a house, who builds a bridge, or performs any other work; a manufacturer who constructs a piece of machinery or a steamship,—owes a duty to the whole world that his work or his -steamship shall contain no hidden defect, it is difficult to measure the extent of his responsibility,, and no prudent man would engage in such occupation upon such conditions. It is safer and wiser to confine such liabilities to the parties immediately concerned.” Curtin v. Somerset, 140 Pa. St. 70; 21 Atl. 244. The immunity from liability to a stranger to the contract does not exist, however, in the case of a negligent act imminently dangerous to human life, as where a deadly poison is put up, and sent into the market, labeled as harmless medicine. The seller is liable to any person into whose hands it may fall, and who is injured by it. Thomas v.-Winchester, 6 H. Y. 397. But this rule only applies to the sale of an instrument in itself dangerous to human life, as poison, gunpowder, etc. It was held not to apply to the case of a sale of a defective fly wheel, and where such an article exploded, or flew in pieces, while used by a person who •had borrowed it from the purchaser, and who wras injured by it, ,he was not permitted to recover from the seller. Loop v. Litchfield, 42 N. Y. 351. In that case the court illustrates the point by the supposed case of the sale of a carriage which breaks down through the negligence of the maker: “It might have been contended with the same property * * * that a carriage was a dangerous instrument.”A recovery for an injury sustained through the use of a defective machine let for a particular purpose-must be confined, therefore, to the lessee, or a person connected with him, in carrying out some right which he had under the contract of hire. The distinction is alluded to in a late case where a landlord was sued for a,n injury to a child visiting a tenant, and who was injured through the landlord’s neglect to repair a skylight which he might have been under an obligation to repair. As the visitor was not, when injured, upon a part of the premises where he had a right to go, which was a roof used for hanging out clothes, and was not at the time “connected with her (the tenant), i. e., carrying out some right which she herself had,” a recovery was denied. Miller v. Woodhead, 104 N. Y. 471; 5 St. Rep. 797. In the present case the hoy injured was a guest of a member of a social club which had hired the coach for an excursion, and wais using it as contemplated by the contract of hiring, and therefore carrying out some right Which the club and its members had.

Judgment affirmed, with costs.

All concur.


text:
    Louis Geitelsohn v. Citizens’ Savings Bank.
    (Supreme Court, Appellate Term, First Department,
    July 27, 1896.)
    1. Savings banks—Payment of deposit—Bulbs.
    A rule of a savings bank that the pass book shall be the voucher of the depositor, and that presentation of it shall be sufficient authority to the bank to make any payment to the bearer, does not relieve the bank from liability for paying a deposit to a person not the depositor, where any fact or circumstance existed calculated to put the bank on inquiry.
    3. Same—Identity of depositor.
    A savings bank, on opening an account with a person who could not write, asked him certain questions, the answers to which were entered in the signature book. Afterwards some one stole the pass book, and presented it to the bank. He was asked the questions which had been asked the depositor, and answered all of them satisfactorily, whereupon the bank paid the amount of the deposit to him. Held, that the bank exercised due care to ascertain the identity of the person presenting the pass book.
    8. Same—Suspicious circumstances.
    The fact that the person presenting a pass book demands the entire amount on deposit, where only small sums had been drawn out theretofore, is not a suspicious circumstance, which should put the bank on inquiry as to the identity of the person presenting the book.
    4. Same—Question for jury.
    In an action against a savings bank to recover the amount of a deposit paid to a person who stole the depositor’s pass book, the teller testified that he applied the usual tests for identification, according to the custom of the bank, and his testimony was not contradicted, nor was his credibility impeached. Held, that it was error to submit to the jury the question whether reasonable care was used by the bank.
    5. Possession of pass book.
    In such case, where the rules of the bank provide that presentation of the pass book shall be sufficient authority to the bank to pay the deposit to the bearer, it is error for the court to charge that possession by a stranger of the pass book of a depositor constitutes no right to draw the money thereon.
    Appeal from the city court of New York, general term.
    Action by Louis Geitelsohn against the Citizens’ Savings Bank to recover $982.50 alleged to be the amount standing to the credit of plaintiff on the defendant’s books. A judgment entered in a verdict in favor of plaintiff for the amount claimed, with interest and cost was affirmed "by the city court (39 N. Y. Supp. 840), and defendant appeals.
    John E. Parsons and John Pirsson, for app’lt; David Neuberger, for resp’t.
   DALY, P. J.

—Between August 21, 1886, and December 3, 1889, the plaintiff made thirty-eight deposits with defendant, aggregating $1,262, and withdrew on nine occasions between March 30, 1887, and January 7, 1890, sums aggregating $320. Thirteen days after the last withdrawal the whole balance, with interest, or $990.84, was drawn and the pass book surrendered. The verdict establishes that this withdrawal was not by the plaintiff, and the question in the case is whether the bank is exonerated by payment to a stranger having possession of the pass book, and whether it exercised due care to prevent fraud upon its depositor. The pass book of the plaintiff, delivered to him by the bank when he opened his account, contained certain “rules and regulations” printed in English, French, and German (in which last-named language plaintiff was examined at the trial through an interpreter) declaring that “every person on becoming a depositor with this bank shall thereby consent and agree to be governed by the by-laws, rules, and regulations of the bank,” and that “all deposits and withdrawals will be entered in a book given to the depositor on making his first deposit, which shall be the voucher of the depositor, and the evidence of his property in the institution, and the presentation of the book shall be sufficient authority to the bank to make any payment to the bearer thereof,” and “all payments to persons producing the pass book issued by the bank shall be valid payments to discharge the bank.” But, notwithstanding these rules, payment by the bank to a person not entitled to receive it, though he may have possession of the bank book, and present it, will not discharge the bank if, at the time of payment, a fact or circumstance was brought to the knowledge of the bank officers calculated to excite the suspicion of and inquiry by an ordinarily careful person, and they failed to make inquiry, or to exercise at least ordinary care and diligence. Gearns v. Bank, 135 N. Y. 557; 3 St. Rep. 562; Tobin v. Institution, 6 Misc. Rep. 110; 57 St. Rep. 856. When the plaintiff opened his account the bank entered in its signature; book (he could not write his name) his -answers to certain questions as to his residence, occupation, date, and place of birth, and his father’s and mother’s names; and the person who presented the pass book and drew out the money on January 20, 1890, was questioned by the teller as to -all these particulars, and answered them correctly, stating besides that he could not write. This was the testimony of the teller of the bank, who, however, (lid not speak from recollection, since he stated, “I do not remember the circumstances of this payment; I merely.know that 1 paid the money;” but stated with certainty that he asked all the questions, because it was marked so. if the jury believed this testimony (and it does not appear from the record that its credibility, as coming from an interested witness, was specifically submitted to them), then the case presents no fact or circumstance brought to the knowledge of the bank officers calculated to excite suspicion or inquiry in pursuing the custom or regulation adopted by them to prevent fraud (Kummel v. Bank, 127 N. Y. 491; 40 St. Rep. 252; Appleby v. Bank, 62 N. Y. 12); the putting of such questions and comparing them with the entries in the signature book being a custom or regulation for that purpose, when, as in this case, the-teller did not recognize the depositor among the persons having the 33,800 accounts with it at that time, the drafts from such accounts averaging 300 per day. The plaintiff urges that the withdrawal on January 20, 1890, of the whole deposit was a circumstance which should have excited inquiry by the bank officers, inasmuch as reference to the ledger would have, disclosed the fact (hat in the previous three years the depositor had withdrawn small sums, not exceeding $80 at one time; hut I fail to find anything suspicious in this circumstance. It is the right of a depositor to withdraw his whole deposit at any time without question. Deposits in savings banks are for the purpose of accumulation and withdrawal at the pleasure of the customer. The fact that he never before drew out his whole deposit is not significant, for the habit of withdrawing small sums establishes no custom with which the withdrawal of the whole deposit is at variance. His wanting all the money to which he was entitled was not a circumstance calculated to alarm a prudent hank official to- the ex tent, as urged by plaintiff, of enforcing the rule, for ninety days’ notice of withdrawal. On the contrary, suc'h a requirement, in an ordinary case, would he most unreasonable. If there is nothing in the demeanor of the applicant, or in the replies to the questions put to him for the purpose of identification, to excite suspicion, the fact that the whole deposit is withdrawn is not a circumstance calculated to arouse inquiry, and it should not be left to a jury to say whether it is or not. The general term takes the view that the failure of the bank officers to “require any identification of the person presenting the pass hook,” and to “send to the plaintiff’s residence, at 101 Orchard street, about five blocks from the bank’s office,” was want of ordinary care. There precautions are not required unless there exists some fact or circumstance to excite suspicion and inquiry. The hank had applied the test for identification according to' its custom, and the applicant stood the test. ."Without ground for suspecting him to be attempting a fraud, further inquiry was not required by law. As there was no fact or circumstance to put the bank officers upon inquiry, the defendant was entitled to a dismissal of the complaint according to the motion made at the close of the plaintiff’s case and at the close of the evidence. The court left it to the jury to say whether the teller and the officers of the bank used that care' and prudence in the payment of this money which a careful and prudent man would have used in a transaction of his own under the same condition of affairs. There was no evidence that they did not, if the teller’s testimony that he asked the questions was to be believed. Had the jury the right to discredit him, in the absence of impeachment, contradiction, or reasonable grounds of doubt? If they had, -then the bank is defenseless; and I find no authority for a ruling which would lead to such a result.

Wherever a case between the savings bank and its depositors has been held proper for submission to a jury, the facts have justified a doubt as to the observance of the rules of the bank and the observance of ordinary care; as where it was shown that on one occasion there was a failure to ask the usual questions, and the clerk who made the payment suspected the signature of the person withdrawing the deposit (Kummel v. Bank, 127 N. Y. 488; 40 St. Rep. 252); or where there was a difference in the signatures (Allen v. Bank, 69 N. Y. 317; Hager v. Bank [Super. Buff.], 31 N. Y. Supp. 448; Tobin v. Institution, 6 Misc. Rep. 110; 26 N. Y, Supp. 14; Saling v. Bank [Com. Pl.], 7 N. Y. Supp. 642); or where there was an error in the description of the assumed depositor executing the power of attorney to another to Avitlidraw the deposit, he being described as “executor” on that instrument, instead of “administrator” (Geams v. Bank, 135 N. Y. 557; 48 St. Rep. 562). On the other hand, Where the dissimiliarity of signatures was slight, a verdict directed by the> court for the defendant was sustained. Appleby v. Bank, 62 N. Y. 12. It would seem, therefore, that where the only facts appearing are that payment of the deposit is made to a person presenting the pass book, whom the bank officials do not know, and have no reason to suspect to be other than the depositor, and who correctly answers the questions put to him for identification, as in this case, the bank will be exonerated from any further claim for the same deposit; and that the fact that the evidence on behalf of the bank as to the circumstances of payment is given by the person who made it, and who testifies, not from recollection, but from the course of business which he is reasonably certain was followed, as in this case, will present no question for the jurv in the absence of facts tending to create a doubt as to the correctness of his testimony.

Certain exceptions of the defendant were well taken. It was error for the court to charge that possession by a stranger of the pass book of a depositor constitutes no evidence of a right to draw money thereon. This completely ignores the rules under which the deposit was received, providing that the depositor’s pass book shall be “evidence of his property in the institution, and the presentation of the book shall be sufficient authority to the bank to make any payment to the bearer thereof,” and that “all payments to persons producing the pass book issued by the bank shall be valid payments to discharge the hank.” The courts have uniformly given effect to such provisions where ordinary care on the part of the officer is exercised, while holding that the possession of the pass book is not conclusive as to the holder’s right to the deposit. Israel v. Bank, 9 Daly, 507, and eases above cited. Only one case gives color to plaintiff’s claim for the correctness of the instruction. In Smith v. Bank. 101 N. Y. 58; 4 N. E. 123, it is said that “a pass book is not negotiable paper, and its possession constitutes in itself no evidence of a tight to draw money thereon;” but this clearly excludes the effect of the rules taken in connection with the possession of the hook. As we have seen, possession of the book, and when customary and ordinarily careful means of identification are employed, justifies payment to the holder. The instruction as given, without the qualification found in the language quoted from the case last cited, was calculated to mislead, that the possession of the pass book does not constitute proof of a right to draw money thereon notwithstanding the rules above quoted.

There was also error in the instruction that the jury were entitled to take into account the fact that the plaintiff was a foreigner, unacquainted with the English language; it appearing that the rules were also printed in German, and that he was acquainted with that language. Eor the same reason it was also error to refuse to charge that the depositor was chargeable with notice of the rules except with the qualification, “provided they are printed in a language known to the depositor.”

An interesting question is raised by the court’s instruction at plaintiff’s request that “this action is not one framed fin negligence,’ and the plaintiff is not hound to show freedom from negligence ;” and by the refusal to charge at defendant’s request, “It is the duty of the depositor to keep his book in a safe place, if he keeps it so carelessly that it is stolen he may not recover against the bank.” The introduction of the rule as to contributory negligence is a novelty in these cases. Authority for the defendant’s position is found in Wall v. Bank, 64 Hun, 249; 46 St. Rep. 601, where a recovery was defeated because the depositor had been guilty of nepli"ence in furnishing to a stranger information which enabled the latter to answer ouestions propounded by the bank officers to test the identity of the claimant. The necessity for the rule in such a case is not apparent. Tf the holder of the pass book answers the ouestions correctly, and there are no suspicions circumstances putting the bank officers upon inquiry, • payment exonerates the bank, and the negligence of the depositor is immaterial. If there are suspicious circumstances calculated to excite inquiry, and the bank officers fail to exercise due care In malting inquiry, the hank would he liable, notwithstanding the negligence of the depositor. In the present case! the assumed negligence of the plaintiff in leaving his pass book in a place accessible with little effort to a person whom he had admitted for three months as a room mate and member of his household, would not relieve the defendant from the necessity of putting the test questions for identification to the person presenting the pass hook. If they neglected to apply such a test, the negligence of the plaintiff would have contributed in no wise to the injury. Having d one so, bis negligence was equally immaterial. The negligence of plaintiff in permitting a stranger to have access to his pass hook would he important if possession of the stranger entitled him to receive the money; hut as such possession does not relieve the hank from the exercise of care to prevent a fraud upon its depositor, such negligence 'in no wise contributed to the injury, and the rulings of the court in that respect were correct. Dor the error in the other rulings refered to, however, the judgment must be reversed.

Judgment reversed, and new trial ordered, with costs of appeal in this court and the city court and of the former trial to appellant, to abide event All concur.


text:
    Pietro Masi v. Congrega San Donato Di Mutuo Succorso.
    (Supreme Court, Appellate Term, First Department,
    July 27, 1896.)
    1. Mutual benefit insurance—Forfeiture—Nonpayment of dues.
    Under a provision of the constitution of a mutual benefit association that any member failing to pay “his monthly dues or other dues” for a certain time shall forfeit his membership, a forfeiture does not result unless the default is as to both monthly dues and other dues.
    8. Same—Notice of default—Condition precedent.
    Where the constitution of a mutual benefit society provides for forfeiture of membership in case a member does not pay his dues within a certain time after notice that he is in default, such notice is a condition precedent to the forfeiture.
    Appeal from Second district court.
    Action by Pietro Masi, administrator of Felice Masi, deceased, against the Congrega San Donato di Mutro Succorso, to recover for certain payments for funeral expenses and sickness alleged to he due by reason of the membership of deceased in defendant society. Judgment was rendered in favor of plaintiff for $140 and costs, and defendant appeals. Affirmed.
    Benjamin E. Hall, for app’lt; John Palmeri, for resp’t.
   DALY, P. J.

It was stipulated on the trial that of the plaintiff made out a case that the deceased was a member in good standing, and subject to none of the liabilities imposed by the constitution, plaintiff was entitled to recover $140, which included $107 for death and funeral expenses, and $83 for sick benefits from November 1 to December 3, 1895, the date of the death. Payment is resisted under the thirty-eighth section of the constitution, which reads:

“Any member failing to pay his monthly dues and other dues for three months shall be considered in default, and, in case of illness, will not be entitled to the sick benefits. In case a member is indebted over three months', the financial secretary shall so inform the corresponding secretary, who shall notify the defaulting member by letter of his default; and, if such a member shall continue to be in default within the two months thereafter, he shall forfeit his rights, including that of attendance from the doctor; and, in case of sickness, he shall be considered as having resigned, and his name canceled from the membership roll.”

As the appellant puts it, the question to be answered under this section are: (1) Did the corresponding secretary notify the deceased that he was in default? (2) If so, had he at the time of such notice been in default for three months for any dues or assessments? (3) Did he continue in default for a further period of two months after such notice? This is correct as to the second question. Under the section quoted, is should be, was the deceased at the time of such notice in default for three months for dues and assessments? for the notice was not to be sent to a member unless indebted upon both accounts. The default of which he is to be notified after three months, as required by the second sentence of the section, is undoubtedly that mentioned in the preceding sentence, which is the failure to pay monthly dues and other dues for three months. Benefits were forfeitable, therefore, if a member, failing to pay his monthly dues and other dues for three months, should, after notice from the corresponding secretary, continue in default for two months thereafter. Notice from the corresponding secretary is thus made a condition precedent to forfeiture, and this notice could not be given until a member was in default for three months for the indebtedness specified. Defendant gave evidence of a notice sent to deceased on July 18 and August 1, 1895; but these notices contained nothing as to default in payment of monthly dues, for the simple reason that the deceased had paid his dues to August 1st, and nothing was due on that account at the time of the notices. It was not until October, 1895, that the notice required by section 38 of the constitution could have been given to the deceased, providing that he failed to pay his monthly dues for August, September, and October. But no such notice was given, and the forfeiture ef his rights was not effected. In September a tender was made by the plaintiff sufficient to pay his monthly dues for two months, and something on account of his other indebtedness, which was refused, and he was dropped from membership in October following, under the impression, on the part of the officers of the society, that the notices of July and August justified their action. This was an error, and the justice correctly held upon the evidence that the plaintiff was entitled to recover the whole sum of $140, under the stipulation.

Judgment should be affirmed, with costs. Under this view -of the plaintiff's rights, the exceptions as. to rulings upon testimony are immaterial, and no ground for reversal is shown.

All concur.


author: McADAM, J. DALY, P. J.

text:
    John A. Dempsey v. Robert J. Horner et al.

    (Supreme Court, Appellate Term, First Department,
    July 27, 1896.)
    Cloktracts—Performance.
    Defendants sold goods under a conditional bill os sale to a tenant ■of plaintiff’s house. The buyer having failed to pay the purchase money, defendants began proceedings to recover possession of their ..goods. They desired to sell the goods in the house, and offered to pay plaintiff a certain sum for that privileg-e if plaintiff would obtain possession of the premises by dispossessory proceedings, and plaintiff did as he was requested. Held, that plaintiff was entitled to recover the amount agreed on, though defendants after-wards took the goods away and sold them elsewhere.
    Appeal from Eleventh district court.
    Action by John Aird Dempsey against Robert J. Homer and others .There was a judgment in favor of plaintiff, and defendants appeal. Affirmed.
    E. F. Daly, for app’lts; J. F. Fitzgerald, for resp't.
   McADAM, J.

—The plaintiff, as the "owner of the dwelling house Ho. 37 West Sixty-Hinth street, in the city of Hew York, leased the same in March, 1895, to Joseph FI. Cofrode for the term .of two years and six months, at $133.33 per month. A Mrs. Taylor, who occupied the house under the lessee, had purchased from the defendants the furniture, draperies, and carpets therein, under a conditional bill of sale, at the agreed price of about $10,-000. The defendants notified Mrs. Taylor that they would take possession of the furniture, etc., whereupon she commenced an. action for injunctive relief, and procured a temporary injunction enjoining the removal. After argument the application for an injunction was denied, and the temporary injunction dissolved. The plaintiff heard of the litigation, and introduced himself as •.the owner of the house to the defendant Horner; telling him that, if his firm intended to remove the furniture, he wanted to take a hand in the proceeding, and see that no damage was done to the house. Mr. Horner referred the plaintiff to Mr. Daly, the attorney for the firm, and the plaintiff called on him the next day. At the interview Mr. Daly suggested that it would be a very good thing, if they had to sell the furniture, to sell it on the premises, and thereupon requested the plaintiff to commence dispossess proceedings against his tenant, and get possession of the premises; that if the plaintiff would do that, and permit a sale to take place under his protection, the defendants would pay him an amount equal to two months’ rent then due, which was $226.66. Daly added, “Remember this is not paid to you as rent,” but f or the purpose of allowing the defendants to have what he termed “a house sale.” The plaintiff said he was doubtful whether Mr. Homer would stand by that agreement, whereupon Mr. Daly said he would sent up and get Homer & Co.’s check for the $266.66, and. hold it for the plaintiff. The plaintiff called upon Mr. Daly later-in the day, and asked if he had the check. The latter produced the check, and said he would hold it for the plaintiff during the dispossess proceedings. The plaintiff assented to the arrangement, and shortly thereafter, to wit, on October 26, 1895, instituted the proceedings, which resulted on October 29, 1895, in a. final order in favor of the plaintiff, as landlord; and on the following day a warrant was issued, directing the marshal to remove the tenant and put the landlord in possession. The plaintiff instructed the marshal not to execute the warrant, 'because of the arrangement he had made with the defendants, and notified the defendants that he was in a position to carry out the agreement. The plaintiff could do no more. He testified that the defendants were to pay the $266.66 for suspending the execution of the warrant,—that is, for not moving the furniture,-—-and that they had every opportunity for a “house sale,” but did not see fit to avail themselves of it. That there was a good consideration for the contract is apparent. An injury to one party, or a benefit to another, is sufficient. Rector, etc. v. Tweed, 120 N. Y. 583; 31 St. Rep. 908; Hamer v. Sidway, 124 N. Y. 538; 36 St. Rep. 888.

It appears from the testimony of the plaintiff that the defendants’ furniture remained on the premises up to the early part of , December following the agreement, when, without availing themselves of the liberty of a house sale, they removed the furniture, and in this manner the plaintiff became possessed of his property •without formally executing t-h-e warrant. According to his testimony, the plaintiff did all he agreed to do, and became entitled to the $266.66. The main conflict upon the trial was as to the time when the dispossess proceedings were to be commenced; the defendants claiming that they wanted two weeks in October for the sale,—one week to get ready, and the other within which to make the sale. This was denied by the plaintiff, who claims to have proceeded with, reasonable diligence. There was certainly no complaint from the defendant as to unnecessary delay. The plaintiff fixes the time of the interview with Daly as about the 15th of 18th of October, and states that very soon after the interview the proceeding was commenced, and judgment recovered five or six days afterwards. The conflict was properly submitted to the jury by the justice, and their finding settles the facts in the plaintiff’s favor. We cannot say that the jury found erroneously. To hold so would be to decide that they were hound to find for the defendants. The witneses were all more or less interested, and the controversy was one eminently suitable for the determination of a jury.

Although the amount claimed by the plaintiff was $266.66, he sued to recover only $250, thereby waiving the excess, and bringing the case within the jurisdiction of the district court (Code, § 3215), and the verdict was for that amount.

The criticism of the defendant that the action is an unusual one is true, but the contract was admitted, and the parties differed only as to the time during which the privileges provided by the contract should be enjoyed. After the defendants removed the property, they under took to adjust the differences by the payment of a smaller sum, which the plaintiff refused to accept.

The judgment should be affirmed, with costs.

BISCHOFF, J., concurs.

DALY, P. J.

(concurring).—It is contended by appellants that, even if plaintiff’s version of the contract he conceded, he was only to procure a warrant in summary proceedings, and to withhold actual dispossession of the subtenant until defendants could have the advantage of selling on the premises the furniture procured fdom them by the latter on conditional sale, and that he had performed all that he, agreed to do, in notifying defendants so that they could proceed and sell on the premises, yet that the contract of defendants to pay him $266 upon such performance was waived or canceled by the subsequent request of plaintiff, acting as attorney for his tenant, for indulgence while he negotiated to procure means to settle the indebtedness to defendants. There would be great force in this contention if the plaintiff had not sworn positively that “his offices between Cofrode (the tenant) and Homer & Co. (the defendants)” were done at the suggestion of the latter, notwithstanding that he had stated it was his wish to get possession immediately, as he had another tenant. Hnder the evidence, it was not clear that the parties intended, hy giving an opportunity to the tenant and subtenant to pay, to abrogate the original contract between plaintiff and defendants; and the submission of the case to the jury without moving 'for a dismissal of the comnlaint at the close of the whole evidence and without the request for a direction of a verdict, was, under the authorities, a concession that there were questions of fact, controlling the case, to be passed upon by them. Their verdict, under such circumstances, cannot be disturbed, there being sufficient evidence to sustain it, even if we regarded the testimony as warranting a contrary conclusion.


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    John Anderson et al. v. Standard Gaslight Co. of New York (four cases).
    (Supreme Court, Appellate Term, First Department,
    July 28, 1896.)
    Witness—interest in result—Employe op party.
    An employe of a party to an action is interested in the result.
    Appeal from Ninth district court.
    . Separate actions by John Anderson, James J. Anderson, Katie Anderson, and Mamie Anderson, respectively, against the Standard Gaslight Company, for loss of personal property by fire, resulting from the ignition of gas escaping from a meter negligently maintained by defendant in a defective condition. Judgment was rendered in favor of plaintiff in each case, and defendant appeals. Affirmed.
    Henry Thompson and Aug. H. Vanderpoel, for app’lt; Sumner B. Stiles, for resp’ts.
   BISCHOFF, J.

—The plaintiffs in the four above-entitled actions were members of the same household, and for such purposes occupied an apartment at No 1781 Lexington avenue, in the city of New York, which was lighted with gas supplied by the defendant company. A meter of the kind commonly used to register the supply of gas had been installed by the defendant ■company, and placed on top of a stationary wardrobe situated in the bedroom next adjoining the parlor; and a jet upon a sliding bracket projected about twelve inches from the front of the wardrobe at -a point about eighteen inches immeliately below the meter. On November 16, 1895, Mary Anderson, the wife of the plaintiff John Anderson, lighted the jet, whereupon the gas which was escaping from a leak in the side of the meter ignited, and while she and her husband, assisted by a number of other -persons, were endeavoring to extinguish the blaze at the meter, the contents of the wardrobe, consisting mainly of wearing apparel of the several plaintiffs, took fire, and was destroyed. About a month nreviously, Marv Anderson, persuaded by the amount of the hill rendered by the defendant company, and the odor of gas in the apartment, informed the company’s representaiive of a supposed leak or defect in the meter or connections. The company sent one of its employes to examine, who advised Mrs. Anderson that there were no leaks or defects, and so reported to the company. About two weeks before the fire the complaint was repeated with the same result. Claiming the fire to have been wholly due to the neglect of the defendant company in failing to maintain its meter in good order and condition, the owners of the destroyed contents of the wardrobe severally sued to recover damages for their respective losses, and from the judgments in their favor these appeals were taken by the defendant. j\To error is claimed excepting with regard to the trial justice’s refusal to dismiss the camplaint upon the ground that the defendant company’s negligence and the plaintiffs’ freedom from contributory negligence were not apparent. All the actions were, by the consent of the parties, determined upon the evidence which was adduced in the one wherein John Anderson was plaintiff, excepting as to the quantum of the damages. Hence, with regard to the questions involved, there appeals may be properly discussed as one.

The evidence was abundant to the effect of the facts herein-before stated. The efforts of counsel for the defendant were in part directed to persuade us, from the fact that the top of the wardrobe, consisting of wood of about an inch in thickness, was not burned through, to the view that the fire originated in the wardrobe, and, enveloping the meter, caused the latter to be in a defective condition in which John Anderson and Andrew Donaldson said they saw it at the time of the fire, ablaze at its side, and in which it appeared when produced by the defendant at the trial, with an open seam at its side, the solder having 'been molten and become detached from the parts. The two last-named witnesses, however, were explicit in their several statements that to extinguish the blaze at the 'meter blankets were used wherewith to smother it, and that, the door of the wardrobe being open, and the contents of the wardrobe of a combustible nature, the efforts to extinguish the blaze caused the latter to extend to such contents, which, as a result, caught fire. Such being the evidence, we must, for the purposes of the appeal, assume that the court below found the facts according.

That it was the duty of the defendant company to maintain its meter in a condition free from the menace of danger to the persons or property of others, by the exercise of a reasonable degree of care, which should he commensurate with the dangerous and explosive nature, of its commodity, to ascertain all needful repairs, and to cause such repairs to he made, is incontestable in principle and upon authority (Schmeer v. Gaslight Co., 147 N. Y. 529; 70 St. Rep. 92; Brown v. Gaslight Co., Anth. N. P. 351; Koelsch v. Philadelphia Co. [Pa. Sup.], 25 Atl. 522; 8 Am. & Eng. Enc. Law, 1273; and cases collated in note, Fuel Co. v. Andrews [Ohio], 29 Lawy. Rep. Ann. 337; 35 N. E. 1059); and that the defendant company was negligent in the performance of such duty was manifest from the facts that it had notice of an escape of gas nearly four weeks before the fire, and that it failed to discover -the leak and repair it, though from its admissions upon the-trial the leak in the meter was ascertainable upon the application of ordinary tests. True, the defendant did send its employes to examine the meiter, and they testified that they had made the usual tests in such cases, and found no defects. Subsequent occurrences, however, demonstrated the. existence of a leak, and, therefore, that the defendant company’s employes negligently performed their duties; and under the rule respondeat superior the negligence of its employes was imputable to the company. Such employes’ testimony that they had properly performed the task of examining the meter was not conclusive. Upon them directly rested the blame of an omission to repair the leak. They were thus witnesses interested in the issue of the trial. Volkmar v. Railway Co., 134 N. Y. 418; 47 St. Rep. 631. The existence of the leak in the meter for a time sufficient to have enabled the defendant company, in the exercise of reasonable care, to discover and repair it, was fairly inferable from the facts of the odor of gas in the apartment for nearly a month before the fire, of which the defendant company had notice, and that the escape of gas was not otherwise accounted for. The absence of contributory negligence upon the part of either plaintiff was apparent from the fact that the fire which destroyed the contents of the wardrobe was wholly the result of the successive acts of others, the defendant company’s neglect to discover and repair the leak in its meter, Mary Anderson’s lighting of the jet near the leak and Donaldson’s efforts to extinguish the lilaze. ETor was contributory negligence predicable of the fact that the plaintiffs, respectively, did not take measures to prevent the use of the gas in the manner intended, in view of a probable defect in the means of supply, inferable from the prevalent odor, since they had been assured by the defendant company’s representatives that there was no leak,, and, therefore, that the use of the gas was free from the risk of injury to person or property. The ignition of the escaping gas, the spread of fire, and the destruction of property were the natural and probable consequences of the defendant company’s negligence. Such negligence, therefore, was the nroximafe cause of the plaintiffs’ losses, and that an accident, or the want of proper caution on the part of another, may have contributed to the consequences, did not excuse the defendant company’s liabilitv. 16 Am. & Eng. Enc. Law, 436.

The judgments, severally, should be affirmed, with costs.

All concur.


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    Marcus R. Mayer v. Ida Fuller.
    (Supreme Court, Appellate Term, First Department,
    July 27, 1896.)
    Oontrcts—Interpretation.
    Plaintiffs procured the employment of defendant at the C. Theater under a contract by which defendant was to pay him ten per cent, of her salary. Afterwards defendant wished to postpone her appearance at the C. Theater, which plaintiff arranged for, and obtained the consent of the manager that defendant might appear during the time for which she was released at another theater, a condition of which arrangement was that plaintiff’s commission should attach to defendant’s engagement at such other theater. Held, that plaintiff was entitled to the commission on the salary earned by defendant at the other theater.
    Appeal from Sixth district court.
    Action by Marcus E. Mayer against Ida Fuller. There was a judgment in favor of plaintiff, and defendant appeals.
    Cantor & Van Schaick, for app’lt; M. L. Erlanger, for resp’t.
   McADAM, J.

action was to recover $60, being ten per cent, commission on two weeks’ salary which the defendant received from Foster & Bial for professional services rendered under a contract claimed to have been procured by the plaintiff. The claim is founded upon an agreement in the form of a letter, in and by which the plaintiff, a theatrical manager, thereby appointed agent for the defendant, was to receive “ten per cent, of all sums realized for making engagements for Miss Fuller, the said ten per cent, to be paid weekly.” On December 18, 1895, the plaintiff procured a contract to be made between the defendant and the managers of the Casino Theater, this city, by which the defendant was to receive $300 per week in an engagement commencing February 3, 1896, and continuing during March, April and May, 1896. Before the time for commencing at the Casino the defendant’s husband called on the plaintiff, and informed him that his sister, Loie Fuller, had contracted to .appear at Foster & Bial’s, and it was deemed proper that defendant’s engagement at the Casino be deferred, so that both actresses should not appear in the same city at the same time. Negotiations were thereupon begun which resulted in a release of the defendant from her engagement at the Casino for a period of eight weeks, so as to allow her to appear at Foster & Bial’s following the Loie Fuller engagement. The plaintiff was instrumental in bringing about this arrangement, and it was agreed that he should receive his commission thereon in the same manner as if the defendant had pedformed at the Casino.

On March 6,1896, Canary and Lederer, of the Casino, pursuant . to the arrangement, wrote to Mr. McConnell, business manager of Foster & Bial, as follows:

“We will give Miss Fuller permission to appear at Koster & Bial’s Music Hall, her engagement to follow that of Miss Foie Fuller. * * * Marcus Mayer’s commission to be protected by K. & B.”

On March 11, 1896, Mr. McConnell wrote to Canary & Lederer as follows :

“Your letter received regarding the engagement of Ida Fuller to play a season of -eight weeks at Koster & Bial’s. Mr. Bial accepts the conditions you name, and that Marcus Mayer’s commission is to be deducted.”

The defendant assented to the conditions stated, one of which, was that the plaintiff’s commissions should be paid on the Koster & Bial engagement. The transaction, therefore, resolves itself into this: The plaintiff procured a contract for the defendant at the Casino for four months, at $300 per week, .and thereafter induced the management of the Casino to allow the defendant to perform at Koster & Bial’s for eight weeks of the term, upon condition that the plaintiff’s right of commission should attach to the engagement at Koster & Bial’s under the contract with them. In short, it was a mere substitution of theaters and employers,, the terms and conditions being substantially the same.

The defendant attacks the validity of the contract under which the plaintiff was appointed -agent at ten per cent, commission, upon the ground that, in so far as it gives a right to commissions-upon engagements not secured by the plaintiff, it is void. Hamlin v. Wheelock, 42 Hun, 530. If the plaintiff should at any time place that interpretation upon the contract, and seek to recover commissions on engagements not procured by him, the objection presented by the defendant will require consideration. The claim in suit is based upon an actual engagement of the defendant at the Casino secured by the plaintiff, and -a transfer of eight weeks of the time to Koster & Bial’s, brought aibout by the efforts of the plaintiff, upon the express agreement that his right to commission under the engagement should he as effectual after the transfer as before.

The justice properly found for the plaintiff, and the judgment must be affirmed, with costs.

All concur.


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    Solomon Simon v. William Wood.
    (Supreme Court, Appellate Term, First Department,
    July 28, 1895.)
    Sale—"Rights of buyers—Rejecting goous.
    Where the buyer accepts part of the goods sold, he cannot reject the balance on the ground that they were not according to the-sample.
    Appeal from Fifth district court.

      Action by Soloman Simon against William Wood to recover the agreed price of merchandise sold and delivered by plaintiff’.® assignor to defendant. Judgment was rendered in favor of plaintiff for part of the sum demanded, and plaintiff appeals. Reversed.
    H. B. Davis, for app’lt; Wm. Cowper Prime, for resp’t.
   BISCHOFF, J.

plaintiff sued, as the assignee of one T„ Simon, to recover the agreed and aggregate price of a certain number of caps manufactured and delivered by the latter at the defendant’s instance and request. The defense to the action, a® originally interposed, were a general denial and a counterclaim for damages for the breach of an alleged warranty. The amount sued for was $73.93. The justice below awarded the plaintiff but $30.30. Hence the latter’s appeal from the judgment.

The defendant’s claim of a warranty appears to have been predicated exclusively on, an alleged “sale by sample,” but the record shows that the defendant failed even of the attempt to-show damages; that is to say, that the caps delivered and accepted were not of equal value with those ordered. The counterclaim -must, therefore, be taken to have been abandoned at the trial. It was unchallenged that all of the caps ordered had been delivered, and the defendant admitted his acceptance of $28.75 worth thereof, taking the caps at the agreed prices, and allowing for agreed discounts. The remaining caps the defendant had offered to return, but such offer the plaintiff’s assignor refused to accept. Plainly, upon these facts, the plaintiff was entitled to judgment for the full amount claimed by him. The contract was entire, and the defendant could not arbitrarily retain of the' while number such as suited him, and decline to receive the remainder. If all of the caps delivered did not come up to the required standard, he was not bound to accept any of them. Helther was the plaintiff’s assignor bound to be content with the defendant’s acceptance of a part of the caps agreed by the latter to he accepted by him. It was the defendant’s duty either to retain all or to reject all, in the absence of an agreement permitting him to do otherwise. Having accepted the caps in part, the defendant must he deemed to have accepted them all. Shields v. Pettee, 2 Sandf. 2f>2. If, after such acceptance, and of the caps proved to he deficit in quality, reliance for redress should have been made upon the warranty, if any.

It is urged in support of the judgment that there was evidence of an agreement, between the plaintiff’s assignor and the defendant, made after the delivery of the caps, that the defendant should he required to retain thereof oulv such as his customers would accept, which proved to he $28.75 worth, after deducting the agreed discounts. To this it is to be said that no such defense-was pleaded, but, assuming that it was litigated by consent of the parties, it is plain that the defense last alluded to did not prevail, the judgment for $30.30 ‘being inconsistent with any such theory.

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

All concur.


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    Henrico Fusco v. Arthur M. Bullowa.
    (Supreme Court, Appellate Term, First Department,
    July 28, 1896.)
    Beal-estate agent—Commissions.
    A real estate agent, employed to lease property, procured the proposed lessee to sign a paper reciting the payment of money on account of deposit, to be paid on the signing of the proposed lease, hut such writing did not contain any promise to take a lease, nor were any terms specified. Held, that there was neither a lease, nor an agreement for a lease, and therefore the agent was not entitled to commissions.
    Appeal from Firts district court.
    Actiou by Henrico Fusco against Arthur M. Bullowa, to recover broker’s commissions for effecting a lease of real property, at defendant’s instance and request. Judgment was rendered in favor of plaintiff, and defendant appeals.
    F. E. M. Bullowa, for app’lt; John Palmieri, for resp’t.
   BISCHOFF, J.

plaintiff sued to recover upon the defendant^ agreement with him to pay the usual broker’s commissions in consideration of the former’s procurement of a lessee for certain real property. The judgment of the court below, which was in the plaintiff’s favor, was predicated on the fact that he had procured one Francesco Pennachio to sign the following instrument with the defendant.

“New York, Dec. 2nd, 1895.
“Received from Mr. Francesco Pennachio fifty 00|00 dollars, on account of the deposit of $400 to be paid on the signing of the lease for No. 100 Mott street, from Jan’y 1st, 1896. ¿ease to be signed on Wednesday, at 12 o’clock, Dec. 4th, 1895. Lease to be for ten years.”

Pennachio had subsequently refused to execute the lease. That the instrument above set forth effected nothing more than an option on Pennachio’s part to enter into a future lease, the terms of which remained to be agreed upon, is apparent from mere inspection. It does not even specify what rent the lessee was to pay, or how he was to pay it. The minds of the parties had not met. It was therefore net a lease, nor an agreement for a lease, and was equally unenforceable against Pennaehio at law and in equity. Levy v. Kottman, 11 Misc. Rep, 372; 65 St. Rep. 422. The statute of frauds (Rev. St., Banks’ Bros. 7th Ed., chap, 7, tit. 1, §§ 6, 8, 3) required the lease, exceeding one year, to be in writing; and the duty of the plaintiff, the performance of which was a condition precedent to his right of recovery, to procure a person to enter into a valid 'and enforceable lease, or agreement for a lease (Condict v. Cowdrey, 139 N. Y. 273; 54 St. Rep. 648; Levy v. Kottman, supra), was not fulfilled.

The judgment should be reversed, and a new trial had, with costs to appellant to abide the event. z .

All concur.