text:
    Henry Bischoff, Resp’t, v. The New York Elevated Railroad Co. et al., App’lts.

      (New York Superior Court, General Term,

      Filed May 9, 1892.)

    1. Railroad-Elevated—Benefits—Proximity op station.
    The question whether great numbers of people being drawn to the vicinity of plaintiff’s premises by the proximity of a station would constitute a special benefit to him is one of fact for the judge, and his refusal to so find should not be disturbed.
    2. Same.
    Where the premises in question have a double frontage, it is not error to refuse to find that the portion facing on the other street was a separate building with no appurtenant easements on the street occupied by the railroad,where it is not shown that between the two so called separate buildings there was any separating wall so solid and without openings as to cut off from either one the advantages of light and air from the other street.
    3. Same—Damages—Evidence—Decrease op rents in street.
    Evidence of a decrease in rents of neighboring property in the same street is admissible, although such property is a hotel and dissimilar in structure and kind of occupation.
    4. Same
    A witnesss was asked on cross-examination as to the value of plaintiff’s premises, and gave it. stating that another building had sold for 825,000 more and that plaintiff’s was the largest; that he made such sum the damage done by the railroad. On re-direct he was asked how much he allowed for such damage, and replied from §30,000 to §35,000; that he thought the property would sell for §100,000 if the railroad was not there. Held, that the answer was not irresponsive, and was competent in reply to the evidence drawn out by defendants.
    5. Same—Reduction op bent.
    Plaintiff testified that he lowered the rent on an outstanding lease because he could not get the rent in its full amount from the tenant. Held, that the judge was justified in finding that his action was due to business-expediency or necessity, and was not negligent or without cause.
    Appeal by defendants from judgment entered on findings, etc., at special term.

      Brainard Tolles, for app’lts; Edward A. Hibbard and W. G. Peckham, for resp’t.
   Per Curiam.

The action is to restrain defendants from maintaining their elevated road and from running their cars thereon in front of plaintiff’s premises.

It is argued for the appellants that the judge incorrectly refused to find as requested in the fiftieth and fifty-first proposed findings of fact. These are: There is a station of defendants’ railroad near plaintiff’s premises which is daily used by great numbers of people, some of whom pass through Park Row in front of said premises, and, the existence of staxion and railroad and the great numbers of people thereby drawn to the vicinity of the plaintiff’s premises constitute a special benefit to said premises.

The first request has no importance. It relates to some people. That some people passed the plaintiff’s premises could not affect the value of those premises. Whether great numbers of people being drawn to the vicinity of plaintiff’s premises would constitute a special benefit to them would depend upon the likelihood of their becoming customers at plaintiff’s premises, or, perhaps, purchasers of them. Whether there would be such advantage would again depend upon the occupations, means and the places of the home and business of the passers by. The question is of fact for the judge, and his refusal to find should not be disturbed. This is perceived in the description of the crowds candidly given by the counsel for the appellants. He says : “ Great numbers of persons employed in the factories, warehouses and places of business in this part of the city use these stations every day and usually pass through some portion of Park Row in going to or from the station.”

The learned court took into consideration fully the advantages or benefits conferred on the property ,by the railroad. And except in rare cases it is always done where the market value of the abutting land is proven, for the advantages, general or special, have gone into the land and affected its value.

The counsel for the defendants asked that this finding of fact be made. It was “ 62nd. The portion of plaintiff’s premises known as No. 20 Duane street constitutes a separate building with a separate entrance, separate walls and no frontage on Park Row. No easements over Park Row are appurtenant.” The evidence does not seem to show that between the two so-called separate buildings there is any separating wall, so solid and so without openings that the Duane street building is cut off from the advantages of light and air that are derived from Park Row. At ■one time the easements from Park Row were appurtenant to the Duane street part of the property. So far as the latter is concerned, there is no proof that it has been extinguished. The relation of the buildings is such that for instance the first floor of 20 Duane street is a continuation of a floor in No. 1 Chambers street. Beyond this No. 20 Duane street, in its front, had an easement which was not limited to Duane street, but extended easterly to Park Row. The judge would not have been justified in finding as requested. Stevens v. The N. Y. E. R. R. Co., 40 St. Rep., 632.

The plaintiff was allowed to prove what had been the rents of Sweeny’s hotel from 1879 to the present time. That hotel was a short distance from the plaintiff’s house. Questions on this subject were objected to on the ground that they were indefinite and irrelevant, and did not relate to the premises in question, and were not within the issues in this action. It was within the scope of the action to ascertain what the effect of the railroad had been upon Park Bow, either in decreasing or increasing rental or fee values. There was no special objection taken because the rent was a matter of bargaining between others than the parties to this suit. In these suits evidence is often allowed without objection upon a direct examination. For want of the particular objection the action of the court should be sustained. The dissimilarity of the hotel from the premises in suit in respect of structures and kind of occupation was immaterial to the inquiry of whether, in a course of years, rent on Park Bow had increased or decreased.

The plaintiff called as a witness one Harnett, who testified as to the values of real estate. On cross-examination he was asked by defendants’ counsel, Can you give the value of Mr. Bischoff’s building ? The answer was that he supposed the building to-day would sell for about $60,000 or $65,000. He further testified that another building in Park Bow sold for $85,000, and that plaintiff’s building was a little larger than the other. Defendants’ counsel then asked:

‘‘ Q. Is it on account of the difference in the building that you make the $25,000 difference?” The answer was, ‘‘I make the damage the elevated railroad has done.”

On re-direct examination plaintiff’s counsel asked:

'■ Q. In estimating for counsel for defendant you said you allowed so much for damage from elevated road to plaintiff’s property. How much did you allow ? ” The question was objected to as asking for the opinion of the witness as to the damage. The court also asked, how much did you allow in the estimate already given? The witness answered: “I stated from $60,000 to $65,-000. I figured the damage done from $30,000 to $35,000. In other words, I think the property would sell for $100,000 if put up at auction to-day, if the elevated road was not there. That is the way I made up my estimate.” The defendants’ counsel asked that the latter part of the answer be stricken out, as irresponsive and incompetent. The plaintiff could not properly be prevented asking the particulars of the evidence drawn out by the defendants. There was no new subject alluded to. He had already given in substance what he believed the property to be worth without the railroad, for he had said it was worth then $60,000 to $65,000, and $25,000 damages had been done. His last answer increased the amount. That would afford matter for observation upon the witness’ testimony, but would not make the testimony incompetent. Whatever the purpose of the defendants in asking the question, the plaintiff had a right to examine to frustrate that purpose if possible. And a failure on the part of plaintiff to accomplish this would not make questions they had asked incompetent.

The reduction of rent on an outstanding lease was not negligent or without cause. The plaintiff testified that he could not get the-rent from the tenant in its full amount, apd therefore he lowered it to sixty dollars a month. The judge was justified in finding that the plaintiff’s action was due to business expediency or necessity in endeavoring to get the largest rent that could be got.

The action of the judge in giving damage from 1884, when the plaintiff acquired the property, and through three years of a then pending lease, is in accordance with the decision of Korn v. N. Y. E. R. Co., 39 St. Rep., 322;

Other exceptions have been examined and do not call for a reversal of the judgment.

Judgment affirmed, with costs.

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


source: Caselaw Access Project

author: Freedman, J.

license: Public Domain

text:
    Samuel I. Knight, Pres’t, App’lt, v. The Sackett & Wilhelms Lithographing Co., Resp’t.

      (New York Superior Court, General Term,

      Filed July 5, 1892.)

    1. New trial—Code Civ. Pro., § 999.
    Section 999 of the Code applies only to jury trials, and not to a trial by a judge without a jury.
    8. Conversion—Lithographic stokes.
    Certain lithographers contracted with plaintiff company to make impressions of drawings on lithographic stones, the impressions to remain the property of said company and be used exclusively for it. The stones were afterwards mortgaged, the mortgage foreclosed, and the stones were purchased by defendant without notice of such contract. Held, that plaintiff company had no title to the stones, but only to the impressions, and could not maintain conversion based on a mere refusal to deliver the impressions, because a delivery of them cannot be had without giving up the stones; that conversion would only lie, if at all, upon proof of the destruction of plaintiff’s interest in the impressions.
    3. Dismissal oe complaint—Form oe judgment.
    Where the dismissal is upon the plaintiff’s own showing, and without making any findings, it should not be on the merits.
    Appeal by plaintiff from judgment dismissing complaint after trial of the issues by a judge without a jury, and also from order denying plaintiff’s motion for a new trial.

      Wm. O. Campbell, for app’lt; Smith, Bowman & Close, for resp’t.
   Freedman, J.

The motion for a new trial was made on the minutes of the trial judge upon the grounds specified in § 999 of the Code of Civil Procedure. But the trial had been by a judge ■without a jury by consent of the parties. The section referred torn express language applies only to jury trials. The order appealed from must, therefore, be affirmed, irrespective of the reasons for which it was made.

Upon the appeal from the judgment it must be held that the complaint was properly dismissed for the failure of the plaintiffs to establish title to the stones. The action being for conversion, the plaintiff was bound to establish title. The stones must be regarded as the principal and the impression as a mere incident. The plaintiff could not acquire title to the stones by a mere offer to pay their value which was refused. The contract of the plaintiff was with the Hatch Lithographic Company, and the latter, and not the defendant, agreed to put upon certain stones certain drawings of the plaintiff and that the impressions were to be the property of the plaintiff and were to be used exclusively for the benefit of the plaintiff. But 'the Hatch Lithographic Company remained the absolute owner of the stones and was lawfully in the possession of them. It was conceded by the plaintiff that after the making of said contract the Hatch Lithographic Company, while so in possession, mortgaged the stones, that the mortgage was foreclosed, that on the sale the stones were purchased by Fuchs & Lang, and that the defendant purchased from them. It nowhere appears that the defendant company, at the time it acquired title to the stones, had any knowledge or notice of the arrangement between the plaintiff and the Hatch Lithographic Company.

Under these circumstances conversion cannot be maintained by the plaintiff against the defendant based upon a mere refusal to deliver up the impressions, because a delivery of them cannot be made without giving up the stones. Nor is a mere refusal to permit a transfer to be made sufficient to sustain the action. Conversion would only lie, if at all, upon proof of the destruction of plaintiff’s interest in the impressions. Short of that, and under the special circumstances of this case, plaintiff’s remedy against the defendant is in equity. Moreover the plaintiff clearly has a good cause of action against the Hatch Lithographic Company for breach of contract

The authorities cited by plaintiff’s counsel have been duly examined, but they do not call for reversal. However true it may be as a general rule of our law of personal property, that no man can be divested of his property without his own consent, and that consequently even a bona fide purchaser from a person in the possession of property who has no title to it, and no authority whatever from the owner to sell or dispose of it, cannot acquire any title against the true proprietor, there are in fact numerous exceptions to the rule. Thus the law will in many cases imply an authority from the owner to sell, and where the owner has conferred an apparent right of property upon the vendor, or an apparent right of disposal, and has furnished the vendor with the external indicia of such right, and the vendor has sold the goods and delivered the possession thereof, the law will protect a purchaser who has acquired the property for a fair and valuable consideration, in the usual course of trade, and without any notice of any conflicting claim, or of suspicious circumstances calculated to awaken inquiry or to put him on his guard, although the goods were in fact obtained by the vendor from the true owner fraudulently. In the case at bar the difficulty with the claim of plaintiff’s company is that the said company saw fit to expend its money for impressions upon stones under a contract with a third pai'ty without acquiring title, or the right of immediate possession, to the stones themselves.

For the reasons stated the complaint was properly dismissed, "but as the dismissal was upon plaintiff’s own showing, and without mating any findings, it should not have been upon the merits.

The judgment should, therefore, be modified by striking out the words “ upon the merits,” and as thus modified affirmed.

The affirmance of the judgment, as modified, should be without costs upon this appeal, but the respondent may have ten dollars, costs and disbursements upon the affirmance of the order.

Dugro and Gtldersleeve, JJ., concur.


author: Dugro, J.

text:
    Louise Lange, Resp’t, v. The Manhattan Railway Co. et al., App’lts.

      (New York Superior Court, General Term,

      Filed July 5, 1892.)

    Trial—Order of proof.
    It is not error for the court to refuse to allow the defendant to prove his defense on the cross-examination of the plaintiff before the plaintiff rests.
    Appeal from judgment in favor' of plaintiff, entered upon verdict, and from order denying motion for a new trial.

      Byram L. Winters, for resp’t; Davies, Short & Townsend, for app’lts.
   Dugro, J.

The defendant endeavored to prove its defense upon the cross-examination of plaintiff before the plaintiff had rested. In refusing to allow this the court committed no error.

The case was fairly tried, and no error appears which requires reversal.

The judgment and order should be affirmed, with costs.

Gildersleeve, J., concurs.


text:
    Joseph W. Lynch et al., App’lts, v. Henry Hunneke, Resp’t.

      (New York Superior Court, General Term,

      Filed July 5, 1892.)

    Evidence—Parol to explain written contract.
    Defendant leased to plaintiffs six lofts “ with the appurtenances.” Held,. that as the appurtenances were not specified paroi evidence was admissible to show their character and extent, and therefore to show that in the negotiations prior to execution of the lease it was agreed that defendant should not cut a door from the hall into the rooms on the first floor, plaintiffs having objected to the reservation of such right.
    Appeal from a judgment entered in favor of defendant upon a dismissal of the complaint after trial at the equity term..

      Bullard & Shannon, for app’lts; J. Homer Hildreth, for resp’t.
   Freedman, J.

The plaintiffs by their complaint alleged:

That by a lease, duly executed under the hands and seals of the parties, the defendant demised to them the six upper lofts (consisting of three in front and three in the rear) of the building" known as No. 2374 Third Avenue in the city of New York, to boused and occupied by the plaintiffs as a first-class lodging-house or . hotel for lodgers of the male sex only, together with the appurtenances, for the term of three years from May 1, 1891, at a certain yearly rent; that in and by the said lease the defendant covenanted that the plaintiffs, on paying the said yearly rent and performing their other covenants contained in said lease, should and might peaceably and quietly have, hold and enjoy the said demised premises for the term aforesaid; that when said lease was executed the lower room of the building was unoccupied; that the only entrance to said demised premises, then and now, from Third avenue is by a hall about six feet wide, with a front door and stairs in the hall leading to the second story, which front door and hall are appurtenant to the demised premises, without which the said demised premises could not be used; that during the negotiations which led to the execution of said lease the defendant stated in substance to the plaintiffs that he might want to rent said lower floor for a saloon, and would like to cut a door from said hall into the lower room; that the plaintiffs then and there stated to the defendant that they would not hire the premises or execute said lease if such door was to be cut through or if the lower room was to be rented for a saloon; that the defendant then promised he would not do so if the plaintiffs executed the lease, and thereupon the said lease was executed by both parties; that the demised premises have forty-four lodging rooms, and they are rented by the plaintiffs to respectable people only for lodging purposes, and no beer or intoxicating drinks are sold on said premises, of which fact the defendant had due notice ; that about July last the said defendant rented said lower room to one S. Buttner, who went into possession, and about October 1 commenced selling intoxicating drinks; that on the 15th day of October, 1891, said Buttner, or some one in his employ, without the consent of the plaintiffs, but with the permission of the defendant, cut an opening for a door from said hall into the lower floor or saloon, and had a door placed therein ; that the plaintiffs immediately notified said defendant of the said door, and objected to the same, and stated to him, in substance, that he would be held responsible if he did not have said door closed and keep the persons frequenting said saloon from entering the said hall; that ever since October 17th last the said saloon has been a disorderly house; that Buttner was succeeded by another tenant, and that since that time the said room was kept partly as a resort for lewd women and partly as a pool room; that lewd women and disorderly men have been in the constant habit of entering the said ball and passing through the said door into the said lower room, and, at times, have been in the habit of making disorderly and loud noises, and frequently as late as four o’clock in the morning; that the plaintiffs protested against these occurrences, but without success; that it is necessary for the business of the plaintiffs that the front door leading from the street into said hall should be unlocked during the dajr, and most of the night, to allow their guests to come and go as their business might require; that by reason of the occurrences complained of, and the passage of the persons complained of through said hall, many of the plaintiffs’ guests have been compelled to abandon the demised premises.

Upon these and other allegations not necessary to be specifically mentioned, including allegations of damages sustained, and that plaintiffs have no adequate remedy at law, the plaintiffs prayed that the defendant, his agents and tenants, be restrained from entering the hall leading from the front door to the upper stories occupied by the plaintiffs; that the said defendant be compelled to close up the door leading from said hall into the saloon or lower room of the building; that the plaintiffs recover their damages already sustained, etc., etc.

The defendant, by his answer, admitted the execution and delivery of the lease as alleged by the plaintiffs, but in all other respects denied the allegations of the complaint.

Upon the trial of these issues the learned judge, after hearing part of the testimony offered by the plaintiffs, refused to hear the remainder and dismissed the complaint upon the ground that the lease'did not give the exclusive use of the hallway to the plaintiffs and did not prohibit the cutting of a door from the hall into the- saloon. This ruling seems to have proceeded upon the theory that the lease constituted the whole contract between the parties and that, inasmuch as the lease did not in terms grant to the plaintiffs the exclusive use and control of the hallway, evidence of a prior or contemporaneous oral agreement concerning said hallway was inadmissible and so far as it had been permitted to be given had to be disregarded.

In this I think the learned trial judge erred.

The general rule which excludes conversations, negotiations, and paroi agreements, prior to the execution of a written agreement relating to and springing out off such conversations, negotiations, etc., does not apply,

1. When the original contract, although verbal, yet was entire, and only a part of it was reduced to writing, in which case the part not so reduced can be proved by paroi; and
2. When the consideration, or a consideration further than that expressed in the writing, does not appear in the writing, in which case the consideration, or the further consideration, may be proved by paroi. Hope v. Smith, 35 N. Y. Supr. Ct., 458; aff’d, 58 N. Y., 380.

So paroi evidence is always admissible as to the meaning which the parties themselves attached to a particular word or phrase in the contract Such evidence does not contradict or vary the terms of the written contract, but is explanatory thereof.

In the case at bar the lease was for the six lofts, “ together with the appurtenances.” These words gave to the plaintiffs whatever was attached to or used with the premises, as incident thereto, and convenient or essential to the beneficial use and enjoyment thereof, and the plaintiffs took any easement or servitude used or enjoyed with the demised premises. Doyle v. Lord, 64 N. Y., 432.

As the appurtenances were not specified, paroi evidence was admissible to show their character and extent, and that being so, paroi evidence was admissible to show that the parties, preparatory to the execution of the lease, met and discussed such character and extent, and agreed that the appurtenances should include all that they appeared to include, and that the defendant would not make a change in such appearances in derogation of his grant, and that in strict reliance upon the promise of the defendant not to change the appurtenances as they then existed and were understood the plaintiffs executed the lease.

Parol evidence to this effect was partly given and partly offered to be given, but rejected. Moreover the plaintiffs did show that before the lease was executed the parties did meet and had a discussion ; that in the course of it the defendant proposed that he should be allowed, in express terms to be inserted in the lease, to reserve the right of cutting a door from the hall into the saloon, and that the plaintiffs so strenuously objected to it, giving reasons for their objections, that the defendant expressly waived the point in plaintiffs’ favor.

Under all the circumstances as they appear at present, it must be assumed that the plaintiffs, if they had been permitted to give all the evidence which was competent under the issues within the rules above stated, would have made out a prima facie case, entitling them, in the absence of evidence to the contrary, to some relief against the injurious use of the hall leading to their premises or of the side door cut from said hall into the adjoining saloon.

For the reasons stated the dismissal of the complaint constituted error.

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

G-ildersleeve, J., concurs.


text:
    Thomas F. Miller, App’lt, v. Henry Holmes, Resp’t.

      (New York Superior Court, General Term,

      Filed July 5, 1892.)

    Slander—Variance.
    The complaint in an action for slander alleged that defendant had said that plaintiff had robbed him of $400. The evidence warranted an inference that he had said that plaintiff had robbed him of §1,200. Held, that the variance was not material, as it could not have misled defendant to his prejudice.
    Appeal from judgment dismissing complaint.

      Maurice Meyer and A. C. Palmer, for app’lt; Wager & Acker, for resp’t.
   Dugro, J.

This is an appeal from a judgment dismissing a Complaint in an action for slander.

In the complaint there is, among other things, an allegation that the defendant had said of the plaintiff that he had robbed him of $400.

At the close of the plaintiff’s case the evidence did not warrant more than an inference that the defendant had said that the plaintiff had robbed him of $1,200.

Leave to amend his complaint so as to conform to the proof was denied plaintiff, and his complaint dismissed because of variance.

This was error, for a variance between an. allegation in a. pleading and the proof is not material, unless it has actually misled the adverse party to his prejudice, etc. Code Civil Pro., § 539.

I think the law upon the subject briefly stated is, where the allegation and proof vary as to the words, it is enough if plaintiff proves that a distinct slanderous charge alleged, which is separable from any other unproven words alleged, was uttered in substantially the words alleged, it not appearing to have been materially qualified by other words not alleged.” Abbott’s Trial Evidence, 661.

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

Freedman, J., concurs.


author: Gildersleeve, J.

text:
    Kate Flynn, Adm’rx, App’lt, v. George Harlow, Resp’t.

      (New York Superior Court, General Term,

      Filed July 5, 1892.)

    Master and servant—Negligence—Overloading floor of building.
    Plaintiff's intestate, who was employed by defendant, a builder, was killed by the falling of the floors while he was removing material for the work from an elevator on the fourth floor. Defendant was present and supervised the work. It appeared that such material of a weight twice, that which the superintendent of buildings testified would bring the str, in up to a breaking point, was placed upon this floor. Reid, that this was negligence on the part of defendant; that he was not warranted in ascertaining the full capacity of the floor as to strength by actual use in piling materials thereon, and that it was error to dismiss on the ground that the intestate was a pa/rticeps criminis.

    Appeal from a judgment o£ the trial term, dismissing the complaint.

      H. Warren Love, for app’lt; Edgar Whitloch, for resp’t.
   Gildersleeve, J.

On or about the 25th day of August, 1888, the defendant, as contractor and builder, was erecting and superintending the construction of a house on premises in West Eighty-Third street, in this city; and plaintiff’s intestate, Charles Flynn, was employed by the defendant, as a day laborer, on this building. The particular service in which the deceased was engaged, at the time of the accident hereinafter referred to, on the day aforesaid, was the removing of brick and mortar, contained in hods, from an elevator machine, which carried the materials from the ground up to the several floors above. At the time of the accident by which plaintiff’s intestate met his death, he was at work on the fourth floor in taking the hods from the, elevator and dumping the contents upon a scaffold near the elevator, for use in building the front walls of the house. While said intestate was so employed, the floor beams gave way and precipitated the materials that had been deposited near the elevator, as aforesaid, upon the floor beneath, and carried it and all the other floors below, with their contents, down to the cellar. The deceased fell with the floors, and was thereby killed. This action was brought to recover damages for the death of the plaintiff’s said intestate, on the ground of the defendant’s negligence and want of care and skill in the construction of said building, and in carelessly overloading the beams and girders of said building with mortar, brick and other building materials. When plaintiff rested, the court below dismissed the complaint on the ground that there was no evidence of any negligence on the part of the defendant, but that whatever negligence there was attached to the plaintiff’s intestate and his fellow workmen.

The dismissal of the complaint having been made upon the defendant’s motion after the close of plaintiff’s case, without any testimony whatever on defendant’s behalf, the” evidence contained in the record must be taken as true for the purposes of this appeal, and the appellant is entitled to have every doubtful fact found in her favor. Colegrove v. N. Y. & N. H. R. R. Co., 20 N. Y., 494; Wylie v. Marine National Bank, 61 id., 417.

The testimony shows that the defendant was present and supervised the work at the time of the accident. The only inference to be drawn from the evidence, as to the cause of the accident, is that it was occasioned by overloading the fourth story with brick and mortar, which were brought up from the ground in the machine above referred to under orders from defendant or his foreman and agent with the knowledge of defendant. It does not appear that the quantity of material to be placed on the fourth floor, or the other floors, was in the discretion of the laborers, of whom the intestate was one, and, therefore, that the overloading was an error of judgment on the part of said laborers. The intestate, with his immediate co-workmen, was on the fourth floor at the time of the accident, and these men were charged with the duty of taking from the elevator, at that point, such materials as were sent up in the hods, presumably by direction of the defendant or his foreman. The defendant and" his foreman must be presumed to have known the quantity of brick and mortar necessary to complete the work. The evidence warrants such a finding of fact McKeon, a fellow workman with intestate, swore that the defendant’s foreman told them (the laborers) “ that was the last day to run the machine, and that he wanted to get enough stuff on every floor to finish the front, so as to raise it a story higher; and that the machine would only run that day, and that 'there would not be a day’s work for the machine.” McKeon further testifies, that just before the accident the defendant came around and said: “Boys, you have got enough stuff on this floor; enough to finish the building; just stop the machine.”

The intestate and the other laborers on the fourth floor, where the defendant gave these instructions, took the materials off the machine; the elevator returned to the ground floor, and, just after these laborers had emptied their hods, the floor went down, carrying the intestate with it to his death. This state of facts did not justify the conclusion of the learned trial judge that, although an injury resulting from the overloading of a building might create a liability, the right to recover could not belong to plaintiff for the reason that the intestate was one of the overloaders and a particeps criminis. It was not to the want of judgment on the part of the men, of whom intestate was one, that the accident was due. If the accident was the result of such a want of judgment, plaintiff has no cause of action, since it is elementary law that a master is not liable for the errors, mistakes, want of judgment or negligence of fellow workmen. The intestate appears to have been free from contributory negligence; he, with his fellow workmen, was obeying the orders of the defendant or his agent; the defendant was present, and saw the work going on. The affirmative proof indicates clearly that the intestate and his fellow workmen did not bring the misfortune upon themselves by their indiscretion. True, they, did the work; but it was done by the direction and under the superintendence of the defendant, by whom, it appears they were dominated and controlled. The intestate was merely carrying out the directions of the defendant. There was no outward indication of the impending danger to warn the intestate of the peril that was before him that called upon him for any effort to escape therefrom. Had he insisted upon leaving the floor, or refused to obey the orders of his superiors and continue the unloading of the machine, as he had been directed to do, he would have been guilty of disobedience that would, perhaps, have warranted the defendant in discharging him.

The work upon which the intestate was engaged was not what is known-as extra-hazardous in its nature, calling for the exercise on the part of the intestate of more than ordinary prudence and care. It was manifestly an accident, such as in the ordinary course of things does not happen if those who have the management use proper care. The danger, as we shall subsequently show, was one of which the master had opportunities of knowledge not possessed by the laborers in his employ. From a careful analysis of all the evidence, it affirmatively appears that the intestate did not contribute in any degree to the accident that resulted in his death.

This question remains to be discussed, namely, was there sufficient evidence of negligence on the part of the defendant to entitle the plaintiff to have the case submitted to the jury ? It is incontestable that the accident was caused by piling too much material on the floors, and especially upon the fourth floor, where the beams or floor timbers first gave way. There is no question here of a failure on the part of the defendant to supply proper tools or implements, nor any question as to whether the machinery was safe or sound ; nor whether there was any defect in the building. The inspector of buildings testified that he examined the building the day before the accident; “ that the building was in first-class condition ; the walls were in first-class condition; all the conditions of the permit issued by the building department had been complied with to. the letter,” and that the accident was due to overloading the floors. The question the defendant had to meet was. this: Was there placed upon the fourth floor, by order of defendant, or his foreman, a weight of materials in excess of the weight the floor was intended to, or could reasonably be expected to, bear ? If so, was such order a mistake in .judgment, for which defendant is not liable, or a gross oversight of existing and well ascertainable facts that constitute negligence ? To put it more tersely, was the use of the premises by defendant so unreasonable as to evince negligence ? If there was any evidence to sustain this proposition, and we are correct in holding, as we have already done, that the intestate was free from contributory negligence, it was the duty of the learned trial judge to submit the case to the jury. A master owes the duty to his servant of furnishing a safe and proper place in which to prosecute his work, and, when they are needed, the employment of skillful and competent workmen to direct his labor and assist in the performance of his work. This duty cannot be delegated by a master to a servant of any grade so as to exonerate the master from responsibility to another servant who has been injured by its non-performance. Pantzar v. The Tilly Foster Iron Mining Co., 99 N. Y., 368.

Due care had been taken by defendant, as appears from the evidence, in the construction of the building, and there' is no evidence of any hidden and internal defect therein .that was the cause of the collapse of the building and the resulting injury; but the evidence, uncontradicted, warrants the conclusion that there was an overloading of the floors, by order of defendant, which was wrongful in a legal sense, and which amounts to a specific act of negligence in the use thereof. The defendant was entitled to use the floors and employ his servants upon and about the same, by imposing upon said floors quantities of materials of such weight as the strength of the floor timbers could reasonably sustain. Within the limits of such reasonable use, the only limit was the capacity of the floors and the building. It might be assumed that the defendant, being an experienced builder and an intelligent man, had specific knowledge of the strength of the floor timbers he used, and approximately of the strength of the building generally. This, however, is not necessary. The evidence indicates how the defendant knew the capacity of the floor timbers. The superintendent of buildings swears that “ the floor beams, where the materials were, were calculated for strength to carry the weight of the floor, so that when you reached an average of 225 pounds to the square foot of weight placed upon that floor, then you would reach what we term a breaking point; each floor was constructed for seventy-five pounds to the square foot, with a factor of safety of three.” It further appears from the evidence that just before the accident, by the personal orders of defendant, or his foreman, there had been accumulated some twelve or thirteen thousand bricks upon the fourth floor, besides a suitable supply of mortar to be used in laying them, upon a scaffold seven or eight planks square. The plaintiff should have shown the exact or proximate size of these planks; but, assuming that they were planks of the size ordinarily used for the purpose to which these were subjected, we have a scaffold or floor space of about eight by twelve feet, upon which all this material has been accumulated. It was testified that each brick weighed about four pounds; and if we leave out of consideration the mortar, which was evidently no small factor in weight, we find that the floor space in question was subjected to a weight of about 500 pounds to the square foot of surface; more than twice the weight that the superintendent of buildings testified would bring the strain up to a breaking point. This was, clearly, such an oversight on the part of the defendant, who was present and directed and saw the condition of affairs, of existing and well ascertainable facts as to constitute negligence. The defendant was not warranted in ascertaining the full capacity of the floor as to strength by actual use in piling materials thereon. He must be presumed to have had a fair and reasonable knowledge of the business in which he was engaged, which includes a knowledge of at least the approximate strength of the floor timbers he had placed in the building, and a knowledge of the approximate weight of tvrelve or thirteen thousand bricks and a quantity of mortar that he had accumulated upon that floor.

The case at bar is not analogous to Dillon v. Sixth Avenue R. R. Co., 48 Super. Ct., 283, where an injury resulted from the giving way of a floor that had been overloaded, and in which case the general term of this court held “ that the defendant was justified in ascertaining the capacity of the floor and building as best he could by actual use in the course of his business.”

While we rest our decision upon the grounds above set forth, we may add that the case under consideration is not unlike the case of Green v. Banta, 48 Super. Ct., 156. In that case, the plaintiff and other servants of the defendant were dumping bricks upon a scaffold when it fell, and plaintiff was injured thereby. The general term of this court held, in that case, “ that it was the duty of defendant to furnish for plaintiff to work upon properly built scaffolding, and any negligence of the foreman or other workmen, employed by defendant, to erect the same was defendant’s negligence, and not that of a fellow workman of plaintiff." It also held “that the fact that the scaffold gave way was •prima fade evidence of negligence.”

For the reasons above indicated, we are of opinion that it was the duty of the learned trial judge to submit the case to the jury.

The judgment appealed from is reversed, and a new trial granted, with costs to abide the event

Freedman and Dugro, JJ., concur.


text:
    The People ex rel. Michael G. Minchen v. Charles MacLean et al., Com’rs.

      (New York Superior Court, General Term,

      Filed July 5, 1892.)

    Certiorari—Return.
    Where the return to a writ of certiorari does not state that all the acts and proceedings of the board are therein returned, and the case contains a judgment not referred to in the return, a further return will be directed.
    Certiorari to review action of the police commissioners in removing relator from the police force.

      Louis J. Grant, for relator; William H. Clark, for resp’ts.
   Dugro, J.

The writ commanded the commissioners to certify •all the acts and proceedings had in the premises of the removal of Michael Gr. Minchen.

The return does not purport to contain all the acts and proceedings. It should contain a statement in effect that all the acts and proceedings of the board in the matter were therein returned.

The absence of this -statement and the presence in the case of the copy of a judgment which purports to have been made by the board of police on October 3, 1890, and which is not referred to in the return, induces the impression that all the acts of the board have not been returned.

A further return is, therefore, directed which should contain, in addition to any other proper matter, the statement referred to.

Freedman and Gildersleeve, JJ., concur.


author: Adlington, S.

text:
    In the Matter of the Probate of the Will of Samuel Wilcox, Deceased.

      (Surrogate’s Court, Monroe County,

      Filed June 23, 1892.)

    Will—Alterations by testator—Effect of.
    An interlineation, erasure or other alteration made in a will, either by the testator or a stranger, after due execution of the instrument, without * a new attestation, does not avoid the instrument, but the court may disregard the same and probate the will according to its original language, when that can be ascertain
    Probate of will.

      Hubbell & McGuire and C. A. Shuart, for the proponents; John Van Voorhis and C. D. Kiehel, for the contestants.
   Adlington, S.

The question of the due execution of this'will has been heretofore settled by the courts, and the only point now remaining to be determined arises out of certain alterations and erasures appearing on the face of the instrument. In two clauses of the will, in which legacies of §7,000 were given to the relatives of the testator, the letter “ s ” has been erased and the letters “ el ” substituted therefor, thus changing the amount of the legacies from $7,000 to $11,000. In another bequest the words “ the use of ” have been interlined, though the change is not really material. This interlineation and the substitution of the letters “ el ” for “ s,” just mentioned, have been done with a different ink from that with which the body of the will was written, and there is also much doubt whether the handwriting in which these changes were made is the same as that in which the rest of the instrument is written.

The fifth clause of the will originally read as follows: “ I give and bequeath to my sister, Mary Rich, the use of seven thousand dollars during her life time, to be invested in bond and mortgage on unencumbered real estate under the direction of my executors herein named in trust, and after her decease goes to her daughter Susan Richards, under the same directions as enjoined on Maiy Rich during the life time of Susan Richards; after her decease it shall go to her children in equal shares."

At some time the words at the end of said clause, here put in italics, have been erased, and can now be read only from the marks of the pen upon the paper, the ink having been wholly scraped away. The contestants allege that these alterations in the will were made after its execution by a person claiming under the instrument, and that the legal effect of the change is to avoid the will. In view of the fact that the alterations were not noted at the bottom- of the will, and were of a nature to excite suspicion, the proponents were called on to give such evidence as they had as to when and by whom the alterations were made; and the contestants then gave testimony in support of their allegations as to the changes in the will. Crossman v. Crossman, 95 N. Y., 153; Williams v. Ashton, 1 Johns. & Hem., 115.

On the evidence adduced I held that the alterations had been made since the execution of the will, either by the testator or by some person unknown, but not by the person charged by the contestants with the offense. . The legal question to be decided is, therefore, what is the effect of material alterations in the will, made after its execution either by the testator or a stranger? It is a well settled rule of law that a material alteration in a deed,, or other written contract, which has been duly executed and delivered, made without the knowledge or consent of the party bound thereby, avoids the instrument as against such party. It is obvious, however, that there is a wide' difference between a deed, or ordinary contract, and a will. The execution and delivery of a deed, or contract, fixes irrevocably the liability of the grantor or obligor; but the execution of a will places no obligation or liability upon, any one, nor does it confer vested rights upon any one. The testator may revoke or destroy the will at pleasure, and he may change or alter its provisions as often as he chooses, provided he has the altered instrument re-executed and re-attested according to law. Even after the testator’s death the instrument has no force until duly established in a proper court, and, after probate, any beneficiary named therein may refuse to accept a legacy, or other provision made for him in the instrument, if he elects so to do. It is apparent, therefore, that the peculiar nature of a will makes inapplicable to it the rule of law heretofore referred to in regard to deeds, or other written contracts, and that the decision m this case must- rest upon other principles.

In regard to all wills the great object of the courts is to give full effect to the intention of the testator, but the will to which such effect is to be given is one made in conformity with the requirements of the statute. In the case of an interlineation or other alteration by the testator, without a new attestation, if effect should be given to such change, the statute of wills, which requires an attestation by subscribing witnesses, would be disregarded. If, on the contrary, a will were, because of alterations, to be held entirely void, it might utterly defeat the intentions of the testator. To avoid this dilemma of disobeying the mandate of the legislature on the one hand, or of defeating the intentions of the testator on the other, the courts, in case of an interlineation, erasure or other alteration, made in a will, either by the testator or a stranger, after the due execution of the instrument, disregard the change and probate the will according to its original language, when that can be ascertained. Doane v. Hadlock, 42 Maine, 72; Smith v. Fenner, 1 Gall. (U. S. C. C.), 170; Will of Tonnele, 5 N. Y. L. O., 254; Pringle v. McPherson, 2 Brevard (S. C.), 279; Stover v. Kendall, 1 Coldw. (Tenn.), 557; Wheeler v. Bent, 7 Pick., 61; Penniman Will Case, 20 Minn., 245; Wolf v. Bollinger, 62 Ill., 368; Locke v. James, 11 M. & W., 901; Short v. Smith, 4 East, 418; In re Hardy, 30 L. J. Prob., 142; Cooper v. Bockett, 4 Moore P. C., 419.

While in the courts of this state this precise point seems to have been very little discussed, yet there are several cases indicating the opinions of the judges upon the question. Before the revision of the statutes of this state a will of realty only passed such lands as the testator owned at the time of the execution of the will. In the case of Jackson v. Holloway, 7 Johns., 394, which arose while that was the law of the state, the testator had made his will devising all lands which he was possessed of to his sons, but after its execution he altered the clause so as to read “ all lands which I die possessed of.” This change effected a material alteration, as the testator had bought other lands since the execution of his will. As to the effect of the alterations the court said: “The obliterations in the will were made not with the intent to destroy the devise already made, but to enlarge it, by extending it to the lands subsequently acquired. The testator, however, failed in making interlineations and corrections which could operate, from not having the amendments attested according to law. The obliterations cannot, therefore, destroy the previous devise, for that was not the testator’s intention. It is, therefore, very clear that the first devise must stand good.”

There are many cases in the surrogates’ courts in this state in which it has been held, without much discussion of the question, that wills in which unattested alterations or obliterations have been made by the testator since the execution of the instrument should be admitted to probate and recorded in their original form. McPherson v. Clark, 3 Bradf., 92; Matter of Prescott, 4 Redf., 178; Wetmore v. Carryl, 5 id., 544-553; Dyer v. Erving, 2 Dem., 160-183; Will of Wood, 32 St. Rep., 286. The doctrine of these cases is also held to be the law of this state in Quinn v. Quinn, 1 T. & C., 437. In the will there considered the testator, after its execution, had erased some legacies, and in some bequests had changed the name of the beneficiary. The general term directed the entire will as originally executed to be admitted to probate.

In Lovell v. Quitman, 25 Hun, 537, affirmed in the court of appeals, 88 N. Y., 377, two bequests, one of §5,000, and one of $2,000, had been obliterated, or erased, with a pen, but were still legible. The" appellants claimed that the parts of the will so obliterated were revoked, and that seems to have been the only point argued by counsel, or discussed in the opinions of the appellate courts. The surrogate, however, admitted the whole will, including the obliterated .clauses, to probate, and his action in this respect was approved by the higher courts, which affirmed his decree. The text writers also hold opinions upon the point under consideration similar to those heretofore expressed.

Woerner, in his American Law of Administration, Vol. 1, page 92, says: “ If a legacy be obliterated by a stranger, or inserted by interlineation, or changed in effect or amount, and the original legacy be known, it may be proved as it originally stood.’" In 1 Redtield on Wills, page 315, paragraph 22, it is said: “ Where the testator makes an alteration in his will, by erasure or interlineation or in any other mode, without authenticating such alteration by a new attestation, in the presence of witnesses, or other form required by the statute, it being presumed that the erasure was intended to be dependent upon the alteration going into effect as a substitute, such alteration not being so made as to take effect, the will stands, in legal force, the same as it did before, so far as it is legible after the attempted alteration.” In Schouler on Wills, §§ 434 and 432, the rule is stated as follows: “ When a will is informally altered by the testator * * * the legal effect is not to make the will void, but to establish it in probate as it stood before the change was made.” “Alterations made in a will by a stranger after its due execution and without the testator’s knowledge or sanction do not affect the validity of the testament in other respects.” “If there is no sufficient attestation of the will as altered the alteration cannot take effect, but the will stands as-before.”

I conclude, therefore, that the will must be admitted to probate and recorded as it was before the alterations and obliterations before mentioned were made; and a decree may be _ entered in accordance with this opinion on two days notice.


author: Daly, Ch. J.

text:
    Cyrus Scofield, App’lt, v. Cecilia Valentini, Impl’d, Resp’t.

      (New York Common Pleas, General Term,

      Filed June 6, 1892.)

    Replevin—Pleading.
    A complaint in replevin, alleging the leasing of certain chattels to H. with a condition that plaintiff should be entitled to possession on failure to make the stipulated payments, and that they should not be underlet without his written consent; that H. transferred them to V. without plaintiff’s knowledge; default in the payments and demand of the chattels of V. and her refusal, states facts sufficient 'o constitute a cause of action against both defendants; Y. took the chattels, subject to all the conditions of the lease, although she did not know of such lease; and upon default in payment plaintiff was entitled to possession, and Y.’s detention of the chattels after demand was wrongful.
    Appeal by plaintiff from an interlocutory judgment of the ‘ special term sustaining demurrer of defendant Yalentini to the-complaint. The action was brought to recover possession of certain chattels, being household furniture, which were leased by plaintiff to the defendant Harris, and by her transferred to the-defendant Yalentini. The latter demurred to the complaint on the ground that it failed to state facts sufficient to constitute a cause of action.

      Wm. G. McCrea (T. J. Rush, of counsel), for app’lt; Louis Hasbrouck, for resp’t.
   Daly, Ch. J.

The complaint sets forth (1) the leasing of the chattels to the defendant Harris by different leases, under which stipulated sums were to be paid weekly and monthly for the use thereof, with an agreement that the leases should cease and the plaintiff should be entitled to possession of the chattels if default were made in any of the payments; and that the chattels should not be underlet without the written consent of the plaintiff ; (2) a transfer- of the chattels by defendant Harris without plaintiff’s knowledge or consent to defendant Valentini, who was in possession thereof when the action was commenced; (3) failure of defendants to comply with the terms of the lease by omitting to make the payments therein required, and that by reason thereof plaintiff became and is entitled to a return of the goods ; (4) demand upon defendant for such return and refusal thereof before the commencement of the action.

The facts stated are sufficient to constitute a cause of action against both defendants. The learned counsel for the defendants would treat the complaint as basing the plaintiff’s right to reclaim the chattels upon the breach of the covenant against underletting,, and argues that as the complaint does not allege an agreement for the return of the goods upon breach of such covenant no-cause of action is stated.

But the complaint alleges an express covenant entitling plaintiff to possession of the chattels in case of default in payment of rent; and as it is averred that default has been made in such payment by both defendants, and that demand has been made for a return of the property, the complaint sets forth a perfect cause of action against the defendant Valentini fora wrongful detention of the chattels, and “ the facts showing that the detention was wrongful ” as required by the Code. Sec. 1721.

It is immaterial whether the uefendant Valentini knew of the lease from plaintiff to the defendant Harris when she took from the latter a transfer of the chattels. She took them subject to all the conditions of that lease because she could get no better title by the transfer than that possessed by the lessee. Austin v. Dye, 46 N. Y., 500; Ballard v. Burgett, 40 id., 314. When, therefore, default was made in the payment of the rent reserved in the lease the plaintiff became entitled to the possession of the property, and though the defendant Valentini had received it in good faith, her detention thereof after demand was wrongful. All the facts-necessary to sustain the action against her are set forth in the complaint, and the demurrer should have been overruled.

Interlocutory judgment reversed and judgment overruling demurrer ordered for plaintiff with leave to answer in twenty days. Costs of demurrer and of appeals to plaintiff.

Bischoff and Pryor, JJ., concur.


author: Bischoff, J.

text:
    George E. Horne, Trustee, Resp’t, v. Arthur Terry, App’it.

      (New York Common Pleas, General Term,

      Filed June 6, 1892.)

    1. Appeal—Case.
    Where the case on appeal from the general term of the city court does not contain the judgment of the general term, such judgment cannot be affirmed, although the appeal is without merit, but the appeal must be dismissed.
    2. Husband and wife—Action on trust agreement—Evidence.
    In an action on a trust agreement by which defendant agreed to pay certain sums to his wife to be used, for her separate and unquestioned use, in consideration of a withdrawal of an action for separation, the question as to whether the wife’s denial of her husband’s conjugal rights d. prives her of the right to his support is not pertinent, and evidence in relation thereto is inadmissible.
    Appeal from an alleged judgment of the general term of the city court, affirming a judgment of that court in favor of the' plaintiff upon a verdict directed by the court.
    Action to recover moneys claimed to have accrued to plaintiff, as trustee for defendant’s wife, pursuant to an agreement with the defendant, whereby the latter promised to pay a weekly sum in consideration of the mutual withdrawal of a matrimonial litigation at the time pending between husband and wife.

      E. R. Terry, for app’lt; T. C. Campbell, for resp’t.
   Bischoff, J.

The question whether or not the wife’s denial of her husband’s conjugal rights deprives her of the right to his support was in no sense pertinent to the case at bar, since the weekly sum sought to be recovered in this action, and which defendant had agreed to paji in consideration of his wife’s withdrawal of her suit for a separation and the abandonment of the .alimony awarded her, was to be applied by her to such uses as she saw fit, and not to be accepted in discharge of his obligation to provide for her support; hence, the trial justice properly refused to receive the evidence excluded, and the appeal from the judgment is without merit.

The absence of the judgment of affirmance of the general term of the court below from the case submitted to us on this appeal, however, precludes us from an affirmance of that judgment. Rule 2 of the general term rules of this court provides that the rules of the court of appeals governing appeals to that court shall apply to appeals from the city court to this court; and rule 5 of the court of appeals requires that the case on appeal shall contain a copy of the return of the clerk of the court from which the appeal is taken. If, therefore, we assume that the case submitted complies with the rules above mentioned there is nothing before us for review, since pursuant to § 3191 of the Code of Civil Procedure we may only entertain appeals from the city. court when they are taken from “ actual determinations ” of that court made at a general term thereof.

On the other hand, if it is urged that the case submitted is defective, in that it does not contain a copy of the clerk’s return and omits the judgment of affirmance upon which our authority to proceed is dependent, then consistency with the rules established for the orderly transaction of judicial business and the avoidance of any appearance of having affirmed a spurious judgment require that this appeal be dismissed. Bastable v. Syracuse, 72 N. Y., 64.

Appeal dismissed, with costs.

Daly, Ch. J., concurs.


text:
    Mary A. St. John, Resp’t, v. Henry A. Potter, App’lt.

      (New York Common Pleas, General Term,

      Filed June 6, 1892.)

    Contract—Architect’s certificate—Extra work.
    Plaintiff undertook by written contract to erect and finish a mausoleum for defendant agreeably to the drawings and specifications of the architect and to find and provide good and proper granite for finishing all said granite work, payment to be made only on the architect’s certificate. It also provided that the drawings and specifications were to co-operate so that any works exhibited in the one and not in the other were to be executed without extra charge, and that the owner might make any alteration, deviation, omission or addition from the contract, which should not affect the contract, but be added to or deducted from the amount thereof. There were no specifications. Plaintiff was required to rebuild the brick foundation which had been prepared. Held, that in the absence of the specifications or extrinsic evidence as to what they were to contain, it could not be said that this work was within the contract, and if not, the architect's certificate was not required.
    Appeal from a judgment of the general term of the city court, affirming a judgment of that court for the plaintiff, entered upon the report of a referee. Action to recover the value of work, labor and services rendered, and materials furnished.

      Lorenzo Semple, for resp’t; James B. Dill, for app’lt.
   Bischoff, J.

The action was brought to recover for work, labor and services rendered and materials furnished for and at the request of the defendant, in the removal and rebuilding of the foundation intended for the mausoleum to be erected for him at Rosedale Cemetery, Orange, Hew Jersey.

The defense was that such services were performed and the materials furnished under a written contract pursuant to the terms of which payment was only to be made upon production of the' architect's certificate of approval, which had been omitted. The evidence taken upon the trial is not returned to us, and we are, therefore, to accept the facts as they were found by the referee, and to inquire only whether those facts sustain the conclusion that plaintiff is entitled to the judgment appealed from. Schwarz v. Weber, 103 N. Y., 658; 3 St. Rep., 611; Travis v. Travis, 122 N. Y., 449; 34 St. Rep., 42.

It appears that on August 30, 1888, the parties entered into a written contract by which plaintiff undertook “ to erect and finish the new building known as the Henry A. Potter Mausoleum,, at Rosedale Cemetery, Orange, Hew Jersey, agreeably to the drawings and specifications made by John P. Hardenburgh, Jr., architect, and signed by the parties and hereto annexed, within the time aforesaid, in a good, workmanlike and substantial manner, to the satisfaction and under the direction of the said architect, to be testified by a writing or certificate under the hand of said architect,’ and to “ find and provide such good and proper Clark’s Island Granite as shall be proper and sufficient for the completing and finishing all the said granite work as per three quarter inch scale drawing made by the architect, for the sum of four thousand, four hundred dollars ($4,400.) ”

It was also agreed by the parties that payment of the several instalments should, only be made upon plaintiff’s production, in each instance, of the architect’s certificate of the facts entitling him to the payment; that “ the specifications and the drawings are intended to co-operate, sc that any works exhibited in the drawings, and not mentioned in the specifications, or vice versa, are to be executed the same as if it were mentioned in the specifications and set forth in the drawings, to the true meaning and intention of the said drawings and specifications, without any extra charge whatsoever; ” that “ should the owner at any time during the progress of the said building request any alteration, deviation, additions or omissions from the said contract, he shall be at liberty to do so, and the same shall in no way affect or make void the contract, but will be added or deducted from the amount of the contract, as the case may be, by a fair and reasonable valuation ; ” that all differences which might arise respecting the true construction and meaning of the drawings and specifications should be referred to the architect for his final decision ; and that if there should be any dispute respecting the value of extra work, or work ■omitted, it should be determined by arbitration.

It does not appear that the specifications referred to in the contract were produced upon the trial, none appear among the papers •submitted, and it is conceded by appellant’s counsel that they never had existence, and to this latter fact the present obscurity concerning the extent of plaintiff’s undertaking is apparently attributable. The drawings, however, were produced and appear as defendant’s exhibits two and three, and from these it appears that the mausoleum was intended to consist of a superstructure of. granite, the foundation of which was to be of brick.

On the trial' plaintiff disputed whether the services and materials for which she sought to recover in this action were among those required of her under the contract.

The burden of proving that they were rested upon the defendant, and if he has not sustained it, the referee’s finding that the services and materials mentioned in the complaint were rendered and furnished at the request of the defendant, and that they were reasonably worth the sum of four hundred and twenty-three dollars and eighty cents, plainly authorized the judgment rendered.

As matters of fact the referee also reported, at the request of the defendant, that at the time of the execution of the contract no work had as yet been performed, either upon the superstructure or its foundation; that a first foundation was built about October or November, 1888; that in April or May, 1889, before the building was completed, and after plaintiff had caused the granite work to be prepared and shipped from Maine to Orange, New Jersey, ready for use, defendant requested plaintiff to remove the foundation then built, and to rebuild it; that the services rendered and the materials furnished for; which recovery was sought in this action were those rendered and furnished in the removal and rebuilding of the foundation, and that such services and materials Were not among those called for by the drawings; that plaintiff had failed. to show that the services and materials were of the ■quality required by the contract or that they were done or furnislied to the satisfaction of the architect, nor had the latter’s certificate of approval been obtained or produced or its non-productian excused; that in May, 1889, plaintiff had demanded payment for the services and materials in suit, and that such payment was refused by the defendant, because the architect's certificate had not been given or produced; that plaintiff had not shown that she had offered to refer any dispute to the architect or to have the value of the work ascertained by arbitration as provided for in the contract.

It is conceded by respondent’s counsel, and too well settled in principle and by authority to admit of any dispute, that if one person agrees to perform services and furnish materials for another, under the direction of and subject to the approval of a third, to be attested by his certificate in writing before payment shall be required to be made, the production of the certificate will ■constitute a condition precedent upon the performance of which the right to enforce payment is dependent, and that, unless the certificate is produced or waived, or its non-production sufficiently excused, no recovery can be had for the services performed and the materials furnished. The sole question, therefore, upon this appeal is: Do the facts reported show the services and materials rendered and furnished in the removal and re-building of the foundation to have been among those undertaken by plaintiff by the contract? If they do, then the judgment is erroneous; if they do not, then plaintiff’s recovery was proper. Manifestly, the referee assumed the facts insufficient to show that they were, and treated the service and materials as independent of the contract and unaffected by its provisions, and upon the tenableness of this assumption the validity of the judgment must dejaend.

Can we say that the referee erred ? The contract provided that plaintiff should erect and finish the building agreeably to certain drawings and specifications, and to these we are referred to ascertain the extent of plaintiff’s obligation. But there were no specifications. How then can we say what was required of plaintiff? Our attention is directed to the clause which provides that the .specifications and drawings are intended to co-operate and it is urged that if the foundation is apparent from the drawings the building of it must be taken to be among the work which plaintiff has promised to perform. But this same clause says that the work which plaintiff is expected to do when it is exhibited in the drawings is work not mentioned in the specifications.

How are we to’ ascertain that the foundation, conceding it to be apparent in the drawings, was not to he mentioned in the specifications, to which the contract refers us as one of the means by which the extent of plaintiff’s work is to be measured ? It may have been the intention of the parties to mention the foundation in the specifications as not included in the work undertaken by plaintiff, and we cannot, in the face of the provision thatthc extent of the work shall be determined from the drawings and specifications, determine it with reference to the drawings only. Plainly, then, the omission of the specifications mentioned in the contract occasioned a latent ambiguity in the latter which was curable only by extrinsic evidence of what these specifications were intended to-contain. Without the aid of such extrinsic evidence, defendant was not entitled to have found as a matter of fact that the building of the foundation was among the work contemplated by the parties when they entered into the contract, and without that fact the defense that plaintiff had not produced the architect’s certificate of approval is not maintainable. Or are we to assume-that because plaintiff contracted to perform a part of the services, or to furnish a part of the materials required for the purposes of the mausoleum, that under the clause respecting “ alterations ” or “ additions ” she was obliged to perform all other services, and to furnish all other materials which might he required for its completion ? We are unable to agree with such an interpretation of that clause. A more reasonable interpretation of it, and one-more in consonance with the real intention of the contracting parties, is that it had reference only to services and materials of like kind and quality as those which were required for the work constituting the subject matter of the contract, and that the parties contemplated no more than a possible departure from the original design of the principal and incidental work specifically contracted for, and that neither, at the time, had in mind work which defendant might thereafter desire to have executed, but which, in its general character, when executed, would not constitute an integral part of that specifically contracted for; as, for instance, the building of a granite enclosure of the land upon which the mausoleum was intended to be erected. And for the reasons already stated, that we cannot determine what work plaintiff was, or was not to do under the contract, we cannot say that the services and materials required for the removal and rebuilding of the foundation were rendered and furnished because of a departure from the original design of the work which she has undertaken to execute, or that they were otherwise among the services and materials contemplated when the parties executed the contract.

It was incumbent upon appellant to show affirmatively that an error was committed to his prejudice, and he has failed to do so. Tracey v. Alimyer, 46 N. Y., 598, 604; Appleby v. Erie Co. Sav. Bk, 62 id., 12, 18: Carman v. Pultz, 21 id., 547; Briant v. Trimmer, 47 id., 96.

The judgment should be affirmed, with costs.

Daly, Ch. J., concurs.


author: Bookstaver, J. Pryor, J.

text:
    Meyer Bickart, Resp’t, v. Michael E. Hoffmann, App’lt.

      (New York Common Pleas, General Term,

      Filed June 6, 1892.)

    1. Brokers—Evidence.
    In un action by a broker to recover commissions on a sale oí real estate, it is competent, to. show his con vernations with the purchaser’s agentas part of his ser "ices rendered, as tending to show that such services were of value to defendant.
    2. Same—Submission op offers.
    It is not a breach of duty for a broker, at the request of one with whom he is negotiating, to inquire of his employer if he will take less than the sum fixed by him.

      8. Same—Need not be present when contract is signed.
    A broker’s commissions are earned when he is the cause or means of bringing the owner and a purchaser together, and a sale results in consequence, although he is not present at the sale, and the owner does not at the time know that the purchaser is such broker’s customer.
    4. Same—Charge.
    In an action by a broker for commissions, a charge that if the broker was not present it was the duty of the owner to ascertain from the purchaser who sent him there, is not erroneous as assuming an employment of the plaintiff; that defendant knew he was negotiating for a sale, and that the inquiry would have disclosed that he came from plaintiff, where the court left the question as to whether plaintiff was the procuring cause of sale to the jury.
    ■8. Same.
    Where it appears that another person claims to have been the procuring cause of the sale, and that the owner has paid him with knowledge of plaintiff’s claim, it is not error to charge that defendant had the rignt to pay the money into court, and allow such person and plaintiff to litigate it themselves.
    <3. Contract—Consideration.
    Defendant leased a stable to plaintiff, agreeing to put it in good order. He cut down a flag pole which was decayed, and afterward replaced it with a new one. Reid, that this was a fixture on the place which defendant was obliged by his agreement to put in good order, and that a promise by plaintiff to pay a portion of the expense was without consideration, and void.
    Appeal from a j udgment entered on an order of the general term of the city court, affirming a judgment entered on a verdict in favor of the respondent, and also affirming an order denying a motion for a new trial.

      Lewis Sanders, for app’lt; H. W. Unger, for resp’t.
   Bookstaver, J.

This action was brought to recover commissions which the plaintiff claimed to have earned as a real estate broker in procuring the sale of certain premises belonging to the ■defendant. Upon the trial the defendant claimed that the sale was not effected by the plaintiff, but by one Samuel Hyman. There was but one exception to the introduction of evidence argued upon the appeal, and that was as to statements made by Hyman to the plaintiff. This was allowed by the court only so far as it appeared that Hyman was the agent of Mr. Scholle, the purchaser. Before the question was asked calling for this evidence, testimony had been given tending to show that Hyman was employed by Scholle as his agent and bookkeeper, therefore ■all communications or negotiations had with Hyman in legal effect were communications and negotiations with his employer Scholle. All the communications and negotiations the plaintiff had with Hyman were with respect to the sale of this property. It is clear that all the plaintiff did pursuant to his employment in relation to such sale while the employment continued was competent evident to prove the performance of services by the plaintiff as broker. In fact, that was the very subject of contention, whether or not he had done anything as broker; and if it was proper to show what he did, we think it was competent to show the conversations with Hyman as agent for the purchaser as a part of the service rendered, and also tending to show that those services were of value to the defendant. It needs no argument to show the fallacy of the contention that a broker can recover only for services performed in the presence and hearing of his principal. If the latter must always be present when his agent acts, or speaks, there can be no need of an agent.

When the plaintiff rested, the defendant moved to dismiss the complaint or direct a .verdict in his favor, which was denied and exception taken; and the same motion was made at the close of the case upon three grounds, (1) that the plaintiff was not the procuring cause of the sale, (2) because he authorized or requested Hyman to procure the sale of the property, and (3) because he-had offered to get the propertyx from the defendant for Mr. Scholle for less than Mr: Hoffmann had authorized him to sell it for.

As to the first of these grounds, it is sufficient to say that there-was some evidence to support plaintiff’s contention that he was the procuring cause of the sale to Mr. Scholle, and the finding of the jury upon that question of fact in the court below is conclusive upon us. Whether or not the plaintiff authorized or requested Mr. Hyman to procure the sale of the property was one-of the questions in dispute on the trial, and was properly submitted to the jury. As to the third ground, it is true that the plaintiff, at Mr. Scholle’s request, inquired of the defendant whether he-would take $33,000, and afterwards whether he would take $34,000 for the property, but it does not appear from the evidence-that in that respect he violated in any way his duty as broker in making these inquiries. In Sibbald v. Bethlehem, Iron Co.., 83 N. Y., 386, the court of appeals, in speaking of a broker’s duty to his principal, said: “He had no right to sacrifice the interests of the latter for the benefit of the buyer, and yet it may well be that the buyer and seller could only be brought to consent to a bargain by some moderate concession as to price, and that the broker acted fairly * * * in making the suggestion which is assailed as a violation of duty.” All of these questions were fairly submitted by the court to the jury in its charge.

It is not material that the plaintiff was not present when the contract was made between the defendant and the purchaser; it is sufficient if his communication with the purchaser were the cause or means of bringing him and the owner together, and that the sale resulted in consequence; the compensation is then earned, although the broker was not present at the sale. Lloyd v. Matthews, 51 N. Y., 124, 132. Nor is it material that the owner did not at the time know that his purchaser was the plaintiff’s customer ; it is sufficient that the purchaser is in fact such customer. Id., 133.

While the jury upon the facts in this case might -well have found in favor of the defendant, yet in our opinion there is sufficient evidence of employment by the defendant of the plaintiff as. broker to sustain their finding on that question. As also on the question of whether or not the plaintiff was the procuring cause of the sale; and we see no reason for disturbing their verdict.

None of the exceptions to the judge’s charge do we think wore well taken. The first exception is to that portion of the charge in which the judge said : “ Therefore, I instruct you that even though Mr. Bickart was not present when the proposed purchase was consummated, it was the duty of Mr. Hoffmann to ascertain from the purchaser who sent him there.” It is argued that this assumed as conclusively proved, first, that Bickart was employed by Hoffmann to effect a sale, which was denied ; and second, that Hoffmann had some knowledge that plaintiff was negotiating a sale of the premises, which the latter denied; and third, that inquiry of Hyman would have disclosed the fact that he came there at the instance of Bickart, which was also denied by Hyman and Seholle. This argument is not sustained by the charge. Before delivering that portion of the charge, the judge had charged the jury that “if the efforts of Mr. Bickart were the means to bring Mr. Seholle and Mr. Hoffmann together, aiidthe sale resulted in consequence thereof, I instruct you that the commissions were earned,” and it was followed by, “ As I said before, I instruct you that if you should determine that Mr. Bickart was the procuring cause of this sale, he is entitled to his commission,” which left the question as to whether or not the plaintiff was the procuring cause of the sale to be determined by the jury. And there was no request made by the defendant to charge more specifically in regard to the employment than had been done. And as before shown, it was not necessary, in order to entitle him to recover, that the plaintiff should have been present when the contract was closed.

The court also charged that “ The law in such case protects the seller of the property, in this instance by authorizing Mr. Hoffmann to pay the money into court and then allow Mr. Hyman and Mr. Bickart to litigate it themselves,” to which an exception was taken. This was not error. It appeared from the evidence in the action that there were two persons who claimed to have procured the purchase of the property and to be entitled to commissions therefor, the plaintiff and Hyman, and that the latter had been paid the commissions.

We have decided that on a motion upon affidavits in such a case the court will grant an interpleader, and if that course had been pursued in this action, one would undoubtedly have been granted, because § 820 of the Code of Civil Procedure provides that “ a defendant against whom an action to recover upon a contract * * * may at any time before answer, upon proof by affidavit that a person not a party to the action makes a demand against him for the same debt or property without collusion with him, apply to the court * * * for an order to substitute that person in his place and to discharge him from liability to either, on his paying into court the amount of his debt. * *" In this case the defendant before making payment to Hyman knew of the claim of the plaintiff, and where a person without collusion is subjected to a double demand to pay an acknowledged debt, and it appears that at least a fair doubt exists upon questions of fact or of law as to the rights of the conflicting demands, he may bring an action of interpleader against them. Crane v. McDonald, 118 N. Y., 648; 30 St. Rep., 98.

The instructions of the court to disregard the counterclaim were proper. The defendant testified that the written lease provided that he should put the stable in good order; that' he could not do any repairs before the plaintiff took possession, as another tenant was in; that the flag-pole was a fixture of the place, and he cut it down without plaintiff’s knowledge and without- his-consent; that it was decayed and might have fallen in the street and done damage. As the defendant was by his lease pledged to-put the property in good repair, even if the plaintiff had agreed to pay half the expense of replacing the flag-pole, it was a promise entirely without consideration and void, for a promise to do what a party is obliged to do furnishes no consideration for a promise of outside consideration. Stilk v. Myrick, 2 Camp., 317. It was-the defendant’s legal duty to replace the pole which he had cut down on account of its infirmity.

The judgment should be affirmed, with costs.

Bischoff, J., concurs.

Pryor, J.

On the argument I was of the opinion that the proof failed to show the employment of plaintiff to sell the property ; but a more careful examination of the evidence convinces-me that it was sufficient to raise a question for the jury.

Plaintiff told the defendant that he was seeking a purchaser; that he would send a party who would probably buy at defendant’s figure ; and afterwards defendant asked plaintiff if he had a buyer for his property ; to which plaintiff replied that he didn’t have one just then, but expected to have one. On no occasion is-it apparent that defendant repudiated the services of the plaintiff; but rather that he accepted the offer of them. Counsel characterizes plaintiff as a. volunteer; but an offer is always voluntary. True, defendant swears that he never employed plaintiff; but he may intend a construction of the circumstances which the law does not sanction.

At all events, the evidence authorizes an inference of employment; and I cannot say that the jury erred in deducing it.

Appellant insists, again, that the plaintiff was not the procuring cause of the sale. But, if Hyman actually negotiated the sale, it is not denied that he was put in motion by plaintiff; and a sale effected, by him through the instrumentality of Hyman was, in legal effect, a sale ‘ by him. Whether and how the commission should be divided between plaintiff and Hyman was of no concern to defendant.

If there be error in the charge I do not perceive that it was prejudicial to the appellant.

The case is close, and was plausibly presented by the ingenuity of appellant’s counsel; but, on the whole, I conclude that the verdict is in conformity with the law and the fact.


author: Bookstaver, J.

text:
    Sarah A. Barnum et al., Resp’ts, v. John Fitzpatrick, App’lt.

      (New York Common Pleas, General Term,

      Filed June 6, 1892.)

    1. Landlord and tenant—Eviction.
    Defendant rented premises of plaintiffs by a lease which contained no covenant by the landlords to repair, and provided that defendant would execute and fulfil all ordinances of the corporation and all orders of the police board and board of health. He refused to comply with certain orders, including one to take down and rebuild two walls of a stable which had become unsafe, and pursuant to said orders plaintiffs made repairs and tore down the stable. Defendant refused to surrender his lease, although offered a release from liability if he would do so, and collected rent from his sub-tenants. Reid, that the acts of the landlords did not amount to an eviction excusing him from payment of ívnt.

      2. Summary proceedings— Non-payment of rent.
    It is no defense to summary proceedings for non payment of rent that the full amount of the stipulated rent is not payable; the landlord is entitled to a final order if any rent is due.
    8. Same—Counterclaim.
    In summary proceedings to recover possession of demised premises the tenant cannot plead a counterclaim in answer to the proceeding.
    Appeal taken by the tenant from a final order of the district court in the city of New York for the fifth judicial district, awarding to the landlords the delivery of. the possession of the premises known as 820 Stanton Street, for the non-payment of rent.

      Frank Moss, for app’lt; Hatch & Warren, for resp’ts.
   Bookstaver, J.

When this case was before us upon a former appeal, we fully and at some length examined both the facts and the law, and it will be unnecessary to do so again except in so far as the new trial has presented a different state of facts. Upon the second trial all of the correspondence between the attorneys for •the respective parties, and the orders of the health and fire departments, were admitted in evidence, and the return shows that nearly all, if not all, of what was done by the landlords was in consequence of these orders and the tenant’s refusal to comply with them.

First, as to the rear building on G-oerck street, called a barn or stable in the testimony and briefs of counsel, the acts of the landlords in regard to which are most bitterly complained of by the tenant. Ou or about the 24th February, 1891, the health depart-_ ment served an order requiring the drain from the hopper closet and hydrant to be disconnected from a cesspool in the yard and connected with the house drain by continuous pipes, and that the stable floor be graded to a properly trapped sewer connected drain. This was not primarily the landlords’ duty, as there was no covenant in the lease on the part of the landlords to make any repairs whatever to the premises during the term of the lease, and the tenant expressly covenanted to execute and fulfil all the ordinances of the city corporation applicable to the premises and all orders and requirements imposed by the board of health and the police department for the correction, prevention and abatement of nuisances or other grievances in, upon or connected with the premises during the term, at his own expense; and had further covenanted not to call upon the landlords for any disbursements or outlay during said term. And notwithstanding this order was called to his attention, the tenant neglected and refused to comply with it.

Thereafter, and on the 3d March, 1891, an order of the fire department was served upon the parties to this proceeding, requiring them to make the stable safe by taking down the rear wall and rebuilding the same, and also requiring them to take down the cracked and bulged portions of the southerly wall. It does not appear from the return how these two walls became so dilapidated as to require such extensive repairs, but as the landlords had not covenanted with the tenant to make any, they of course were not bound to do so, as far as the tenant was concerned; if he desired the continued use of this building after the orders of the fire department, it was his duty to have made the repairs himself. But this he also refused to do. At the time the last notice was served, the parties hereto were notified that unless they immediately certified the superintendent of buildings their assent or refusal to-make the building safe, a survey would be ordered to be held thereon, and all costs and expenses incurred therein would become a lien on the building. And the tenant having refused to do anything towards compliance with either of these orders, it became necessary for the landlords to do it themselves, for if they neglected, the fire department had the right under the law to enter the premises and do what was required and charge the amount against the property, which would doubtless have been at an -increased expense to whoever was bound to pay for it. But tearing down the rear and side wall rendered the stable unfit for use for any purpose, and would naturally cause the remaining- walls to be unfit and dangerous; and therefore the landlords would either have to rebuild or tear all the walls down; and as they were under no covenant to repair they were not bound to rebuild.

When this action was before us on a former appeal we showed that the tearing down of a building under such circumstances did not amount to an eviction or even to an unlawful trespass. 42 St. Rep., 179; Brown v. Quilter, Amb., 621. And the supreme court, second department, arrived at the same conclusion in White v. Thurber, 29 St. Rep., 204.

We do not think that the acts of the landlords in tearing down-this stable were, under the circumstances, either willful or malicious, as claimed by the appellant. There is not the least intimation in the return that these orders were procured at the instigation of the landlords, or for tire purpose of having the buildings-torn down or removed. All that they did was rendered necessary by lawful authority, unless, indeed, they had chosen to rebuild, which they were not bound to do, as before shown.

After what was said on the former appeal, it is not necessary now to review at length the various orders of the health and fire-departments relating to the front building on Stanton street. It. is sufficient to say that the orders of these departments, admitted in evidence upon the last trial, fully justified the inferences of the court on that appeal. These orders required extensive repairs to that building, so extensive, in fact, as to have seriously affected the beneficial use of the premises, and would have justified the tenant in removing from them as on an eviction, and had he done so the landlords could not have complained. ■ Indeed, they foresaw that the repairs were of such a nature as would seriously interfere with the use of the premises, and offered to relieve the-tenant from all liability if he would surrender his lease. This, however, he persistently declined to do, but remained in possession at the time these proceedings were commenced, as did also-his sub-tenants, from whom he collected rent for the month of July, although he refused to pay the landlords his rent for that month, on account of which this proceeding was brought. And as shown on the former appeal, it was not a sufficient answer to the proceeding that the full amount of the stipulated rent was not payable, and that the landlords were entitled to a final order if any rent was due; also, that in summary proceedings by a landlord against a tenant to recover possession of demised premises, the latter could not plead a counterclaim in answer to the proceeding.

There is nothing in the return which would lead us to believe that at the time the landlords instituted this proceeding they were not acting in good faith, either in commencing the proceeding or in doing the work which they were required by higher authority to do, or that they, at that time, intended to delay the work so as to seriously interfere with the tenant’s use of the premises. Much of the delay, it seems to us, was occasioned by the tenant himself refusing to assist the landlords by the removal of his property on the premises to be repaired. The question must be determined as of the time when the proceeding was instituted, and not by subsequent acts.

We therefore think the final order should be affirmed, with costs.

Bischoff and Pryor, JJ., concur.


author: Per Curiam.

text:
    Thomas C. Smith, Pl’ff, v. The College of St. Francis Xavier et al., Def’ts.

      (New York Superior Court, General Term,

      Filed July 5, 1892.)

    Stay—When toi not be granted.
    Where the parties to the two actions are not identical, and the complaint in the one first brought alleges additional matter and demands more relief than is sought in the other, a stay should not be granted in the latter action.
    Appeal by defendant Mary L avette from order denying the motion to stay proceedings.
    The following is the opinion by the court below:
    Gildersleeve, J.—I do not think this action and the one in the supreme court are identical The papers before me do not disclose a state of facts that warrant the granting of a stay in this action preceding the determination of the supreme court action. It will not be denied that where two suits are commenced in different courts, and the subject of the action and the parties are the same in each, the court which first acquires jurisdiction should dispose of the whole matter. McCarthy v. Peake, 18 How. Pr., 138. But the parties to these two actions are not the same, inasmuch as John Gorman, who appears as one of the defendants in the supreme court case, is not mentioned in the superior court suit. What his interest is, does not appear; but the fact remains that the parties to the two suits are not identical. It is true that the property involved is the same in both actions; but that is not a sufficient reason for granting the stay. Stowell v. Chamberlain, 80 N. Y., 272; Dawley v. Brown, 79 id., 398-400. It is also true that all the relief demanded in the superior court case, which is the junior action, is demanded in the supreme court case, but the complaint in the latter case alleges additional matter, -and the prayer asked for more than is sought in the superior court case. The same evidence would not support both actions, inasmuch as more evidence would be required in the supreme court case than would be necessary in the superior court case. See Stowell v. Chamberlain, supra. To sustain a plea of former action pending, which is governed by the same principle as a motion for a stay, Dawley v. Broion, 79 N. Y., 400, it is necessary that it appear that the first action is for the identical relief demanded in the second action. Dawley v. Brown, supra; Kelsey v. Ward, 16 Abb. Pr., 102-103, affirmed, 38 N. Y., 83. So closely has this rule been enforced, that in the case of Kelsey v. Ward, supra, which is quoted with approval by the court of appeals in the case of Dawley v. Brown, supra, it was held that the pendency of actions for rent alleged to be payable quarterly was no defence to an action for the same rent under a claim that it was payable at the end of the year. Under the circumstances, the motion for stay is denied, without costs.

      A. B. Johnson, for app’lt; George Bliss, for resp’t.
   Per Curiam.

The order should be affirmed, with $10 costs, etc., upon the opinion filed by the learned judge below.

Freedman and Dugro, JJ., concur.;: