author: Daly, Ch. J.

text:
    Jacob Klee et al., App’lts, v. Hugh J. Grant, Sheriff, Resp’t.

      (New York Common Pleas, General Term,

      Filed February 6, 1893.)

    Replevin — Possession—Goods delivered on memorandum.
    Plaintiffs sent goods to the store of the R’s, “ on memorandum,” that is, to compare with others and for purchase by the R’s, if found satisfactory. They were attached by defendant under process against the R’s. Plaintiff testified that the R’s, had the right to their possession and control until they were demanded. Held, that as, at the time of the seizure, the right of possession was in the R’s, and plaintiffs could not retake them without a demand, they could not maintain replevin.
    Appeal by the plaintiffs from a judgment of the general term of the city court, entered upon the dismissal of the complaint.

      Abraham Gruber, for resp’t; Samuel Fleischman, for app’lts.
   Daly, Ch. J.

The plaintiffs seek by this action of replevin to take from the sheriff goods which the latter attached under process against Rothschild and others. The goods were attached in. the Rothschild store whither they had been sent by plaintiffs “ on memorandum,” and the question in this case is whether plaintiffs had the right to the immediate possession of the goods at the time of the seizure by the sheriff; for the Code prescribes that replevin may not be maintained for a chattel seized by virtue of a warrant of attachment against the property of a person other than the plaintiff, if at the time of the seizure the plaintiff had not the right to reduce it into his possession. Code of Civil Procedure, § 1690, subd. 3.

Taking the testimony on the part of the plaintiffs in the aspect most favorable to them, it appears that a clerk or buyer of the Rothschilds came to the plaintiffs to select goods to be sent to his store to compare with other goods, and if he found he could use them he would buy them; and that, as plaintiff, Bernard Klee, swears, Rothschild was absolutely entitled to their possession and control until they were demanded. The goods were never demanded except from the sheriff after he had attached them. It, therefore, appears from the plaintiffs’ own testimony that the transactions between them and the Rothschilds gave the latter the right to possession at the time of the sheriff’s seizure, for the plaintiffs could not retake the goods until they had made a demand of them, or their price, of the Rothschilds, and, therefore, under the Code they cannot have replevin.

The legal results of the plaintiffs’ own statement make it unnecessary to discuss the question whether there was not an actual sale by them to the Rothschilds of the property in question. Had the case turned upon the answer to that question, the evidence should have been submitted to the jury ; but it matters not what was the real transaction, for that which the plaintiffs proved vested the right of possession in the Rothschilds and notin the plaintiffs, when the property was attached.

None of the authorities cited by the plaintiffs, as to the possession by bailees, trustees, agents, factors and mortgagees, sustain their contention that a demand was unnecessary before they could repossess themselves of the goods they had delivered to the Rothschilds with the right, as their evidence shows, to absolute possession and control.

If the Rothschilds were to be considered as bailees of the plaintiffs, their possession was not the possession of the latter, but was under a contract by which they had the right to retain the goods upon paying the price; and their right to possession continued until they had refused to pay the price or to return the goods upon demand.

The judgment should be affirmed, with costs.

Bischoff and Pryor, JJ., concur.

      Affirming 43 St. Rep., 791.


source: Caselaw Access Project

author: Bookstaver, J.

license: Public Domain

text:
    The Cream City Furniture Co., App’lt, v. Albert C. Squier et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed February 6, 1893.)

    Mechanic’s lien — 'Verification of lien.
    The notice of lien was verified before a commissioner for this state in Wisconsin, but at the time of filing had no certificate of the secretary of state that the pers.on taking it v as such commissioner; such certificate being attached to the notice only after the commencement of the action to foreclose. Held, that there was no proper verification, and that the notice ,was insufficient to create a lien.
    Appeal from so much of a judgment entered at the equity term of this court, as dismissed the complaint as to Louise Squier and the Squier & Whipple Co., and adjudged a paper purporting to be a mechanic’s lien invalid.

      John C. Tomlinson, for app’lt; Alexander Thain, for resp’t.
   Bookstaver, J.

This action was brought to foreclose a mechanic’s lien, and the first question to be determined on this appeal is whether the paper purporting to be the notice of mechanic’s lien was when filed in the county clerk’s office sufficient to create a lien or not. All the other questions raised by the appeal depending upon this one.

The mechanic’s lien act, chap. 342, Laws 1885, § 4, provides that in order to effect a lien a notice of the lien containing certain facts must, within a certain time limited, be filed in the county clerk’s office in the county where the property is situated, and that this notice of lieu must be verified. If it is not verified when filed it is a nullity. Conklin v. Wood, 3 E. D. Smith, 662, where it was held that a defective verification was fatal to the lien and could not be amended; Keogh v. Main, 50 N. Y. Supr., 183; Grey v. Vorhis, 8 Hun, 612.

In this case the notice of lien was verified before a commissioner for the state of Hew York in Milwaukee, Wis.; and was filed in the Hew York county clerk’s office without any certificate of the secretary of state that the person taking the verification was a commissioner for the state of Hew York; nor was such authentication supplied until sometime after the commencement of this action, when it was taken from the files of the county clerk’s office and the certificate of the secretary of state attached to it. Verification out of the state is purely statutory, and in this case is regulated by § 4, of chap. 270, of the Laws of 1850, which provides that before any affidavit taken before a commissioner out of the state “ shall be entitled to be used, recorded or read in evidence, in addition to the preceding requisites, relating to verification, shall be subjoined or affixed to the certificate, signed and sealed by such commissioner as aforesaid, a certificate under the hand and official seal of the secretary of this state, etc.” The notice, therefore, was not entitled to be used, recorded or read in evidence. Florance v. Butler, 9 Abb., N. S., 63; Harris v. Durkee, 5 Civ. Pro., 376; Tim v. Smith, 3 id., 347, affirmed by the court of appeals, id., 416.

But appellant contends that the verification was good as a verification without a certificate, and that this is all the mechanic’s lien act requires. The difficulty with this position is that the law before quoted says that such a verification is not entitled to be used unless accompanied by the certificate. It is difficult to conceive how the filing of the notice was not a user of it within the meaning of this act; in fact it was the first use to which it could be put, and the chief one, and created the lien if effective, provided it was subsequently followed by the other requirements of the mechanic’s lien act. Under § 844 of the Code relative to affidavits taken in other states, which provides that the same must be taken before an officer authorized by the laws of the foreign state to take and certify the acknowledgment and proof of deeds to be recorded in that state, and that such verification must be accompanied by a certificate of his official character and the genuineness of his signature, it has been held that the absence of such certificate makes the affidavit a nullity. See cases supra, and Phelps v. Phelps, 6 Civ. Pro., 117, which was affirmed by the court of appeals, 32 Hun, 642. In Irving v. Campbell, 121 N. Y., 353; 31 St. Rep., 307, a certificate of acknowledgment, proved by a subscribing witness, omitted the place of residence of the subscribing witness; it had been received and recorded by the register, and when the record was sought to be used for the purpose of making and establishing title, it was said : “We find no authorities holding that a material provision of the statute expressly required to be stated can be wholly disregarded, and a deed thus acknowledged lawfully admitted to record. That a deed improperly recorded cannot be read in evidence has been determined in numerous cases.” Citing Morris v. Keyes, 1 Hill, 540; Clark v Nixon, 5 id., 36. See also, Williams v. Culhane, 22 St. Rep., 42. And in 5 Am. & Eng. Enc. of Law, 443, the rule is laid down that “ in order that a deed may be recorded, and the record furnish constructive notice of its contents to subsequent purchasers, it must be acknowledged or probated before an officer duly authorized to take such acknowledgments or probates, and the deed must contain a certificate to that effect,

In view of the cases cited, we think that Lawton v. Keil, 51 Barb., 32, although frequently cited on other points, can no longer be regarded as authority for holding that the affidavit can be used without a certificate, especially in view of the fact that it was decided by a divided court.

There is still another difficulty with the plaintiff’s case. The Mechanic’s Lien Act, § 4, requires that a copy of the notice, filed with the county clerk, must be served upon the owner or other person interested, by delivering a copy of that notice to him within ten days after the filing. As far as appears from the case, no copy of that notice, with a certificate of the secretary of state, was ever served upon the defendants. Besides, the secretary of state’s certificate, as before shown, was not attached to the notice on file in the county clerk’s office until some time after the commencement of this action.

Having arrived at this conclusion, it is unnecessary to consider the other questions raised upon this appeal, as they all fall with this one.

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

Daly, Ch. J., and Pryor, J., concur.


text:
    Catharine A. Peters, Resp’t, v. Sidney H. Stuart, Adm’r, App'lt.

      (New York Common Pleas, General Term,

      Filed February 6, 1893.)

    1. Decedent’s estates — Limitation—Rejection of claim.
    There is no statute or rule of law which requires the notice of rejection to be in writing or in any particular form. When the administrator or executor, upon presentation of a claim, immediately disputes and rejects it, and so informs the bearer, this is sufficient to set the statute of limitation running.
    2. Same.
    After the administrator had so rejected the claim he sent a written notice of rejection to the claimant’s house, where it was left with the servant, who said the claimant “was not in,” and she did not actually receive it until two weeks' later. Held, that such notice was equivalent to personal notice, and set the statute running.
    Appeal from an order of the general term of the city court, affirming a judgment entered upon the verdict of a jury in favor of the plaintiff.

      Theodore M. Melvin, for app’lt; Seaman Miller, for resp’t.

       Reversing 48 St. Rep., 511.

   Bookstaver, J.

The action was brought to recover $333, alleged by plaintiff to be a claim against the estate of defendant’s intestate to Sarah A. Peek for board and rooms, washing, care of deceased, preparing body for burial and use of plaintiff’s house for burial, less a credit of $72.

The prime question to be determined on this appeal is whether the action is barred by the short statute of limitations. The claim of plaintiff, together with that of her sister, was presented to defendant as administrator on November 17, 1890; he then told the person who presented these claims that he disputed and rejected them, and two days thereafter he signed and had left at plaintiff’s house a formal notice in writing, disputing and rejecting her claim. The summons in this action was served upon defendant on the 23d May, 1891. The statute expressly declares that an action upon such a claim must be commenced within six months after the dispute or rejection of it. Code of Civil Procedure, § 1822. The time of publication of the notice to present the claim is immaterial; the bar runs from the rejection and not from the commencement or end of publication of notice. Code § 1822. And it applies to claims accrued subsequent to, as well as prior to, the death of the intestate. Cornes v. Wilkin, 14 Hun, 428; aff’d, 79 N. Y., 129. We think the rejection was ample to effect its purpose. It is true, as stated in Van Saun v. Farley, 4 Daly, 165, “the statute does not mean by rejection merely a mental emotion, but the action of the mind must be followed" by some outward act by which the owner of the claim may be apprised of the result arrived at” But here, we think, there was much more than a mere mental emotion. There is no. statute or rule of law which requires the notice of rejection to be in writing or in any particular form.

In this case, when the claim was presented, it was immediately disputed and rejected, and the bearer of the claim was so informed at the time. This, we think, was sufficient If the agent presenting the claim had authority to present it to the administrator, it necessarily follows that he had authority to receive, on plaintiffs behalf, notice that he accepted or disputed and rejected it. Where a creditor sends a person to collect a claim of a debtor, the latter certainly is authorized to receive and receipt for any money that may be paid him on account of that claim, and where one sends an agent to make a demand of any kind, the answer of the person on whom the demand is made is good when given to the agent, and in law is considered as if given to the principal personalty. Qui facit per alium facit per se is one of the oldest and best established maxims of the law. Hence, we think, the statute commenced to run at the time of the verbal notice that the claim was disputed and rejected. But this was followed up by a written notice to the same effect within two days thereafter, which was left at the house of the plaintiff during her temporary absence with a person of suitable age and discretion, and the bearer was informed that she “ was not in,” according to the testimony of defendant’s witness, and that she “ was not home,” according to the testimony of plaintiff’s witness; and on the trial it appeared that she did not actually receive it until two weeks after it was served. Even taking the plaintiff’s testimony that she was not at home, we do not think that this was sufficient answer to apprise the defendant that she was absent more than temporarily, or was not at home to visitors, a common expression used by servants when a party does not wish to be seen, although in the house at the time. By § 796 of the Code it is provided that a notice or other paper in an action may be served on a party or an attorney either by delivering it to him personally or in the manner prescribed in the next section; and subd. 4 of § 797 provides that such notice may be served “ upon a party by leaving the paper at his residence within the state between six o’clock in the morning and nine o’clock in the evening, with a person of suitable age and discretion.”

While it is true that “where any statute or the terms of it require notice to be given, and there is nothing in the context of the statute or in the contract, or in the circumstances of the case to show that any other notice was intended, a personal notice must always be given ; but the context or circumstances of the case may be such as to show that a personal notice was not intended, and in such case a notice by mail, which is the ordinary mode of giving notice in business transactions, is authorized.” We think that the written notice left at the house of the plaintiff under the circumstances of this case was equivalent to a personal notice, and also set the statute running, and for this reason too the complaint should have been dismissed.

It has been said that the statute of limitations is a technical defense lacking merit, but it is a defense which the law gives, and as such is entitled to its full weight. “An executor is bound to set up the bar of the statute, and he would not be allowed in his accounting any sum paid upon a debt which at the time of its payment by him was barred by such statute.” Butler v. Johnson, 111 N. Y., 212; 19 St. Rep., 86. “ Statutes of limitation form part of the legislation of every government and are everywhere regarded as conducive, and even necessary to the peace and repose of society.” Godden v. Kimmell, 99 U. S., 201. “Statutes of limitation are vital to the welfare of society, and are favored in the law. They are found and approved in all systems of enlightened jurisprudence. An important public policy lies at their foundation. They stimulate to activity and punish negligence. Mere delay extending to the limit prescribed is itself a conclusive bar. The bane and the antidote go together." Wood v. Carpenter, 101 U. S., 185.

We think, therefore, that the court erred in refusing the motion of defendant to dismiss the complaint on these grounds. And we regret this result the less on account of the extremely unsatisfactory and hazy nature of the testimony offered on plaintiff’s behalf to support the claim for board of deceased alleged to be due, and because we think the charges of the plaintiff, not being a professional nurse, for attention during the deceased’s illness and for services rendered in subsequently preparing the body for burial, not being supported b any agreement to pay for them, are of doubtful validity under Hewett v. Bronson, 5 Daly, 1.

The judgment should, therefore, be reversed, with costs to the appellant on this appeal and in the court below.

Bischoff and Pryor, JJ., concur.


author: Bischoff, J.

text:
    The State Bank of Rock Valley, Resp’t, v. Wallace C Andrews, App’lt.

      (New York Common Pleas, General Term,

      Filed February 6, 1893.)

    1. Corporations — Liability op directors for debt op company.
    Where the charter of a corporation provides that “ every director shall he personally liable for debts incurred by the corporation during his administration to an amount not exceeding” a certain sum, an action may be maintained by a single creditor against a single director to recover his debt.
    3. Same.
    In such a case it is not necessary to allege or prove the recovery of a judgment against the corporation, as the director is liable as an original debtor.
    Appeal from a judgment of the general term of the city court of New York, affirming a judgment for plaintiff entered upon the decision of a demurrer to the complaint.
    Action by a creditor of the American Loan & Trust Company to recover the amount of his demand of the defendant, a director, under a provision of the charter of the company that “ every director shall be personally liable for debts incurred by the corporation during his administration to an amount not exceeding five thousand dollars.”

      Marshall P. Stafford, for resp’t; James W. Hawes, for app’lt.

       Affirming 44 St. Rep., 788.

   Bischoff, J.

The complaint alleges that plaintiff is a corporation created under the laws of the state of Iowa, and that the American Loan & Trust Company was chartered by the legislature of the state of New York; that the latter corporation is indebted to the former for money deposited, which it failed to repay after due demand, in the sum $1,478.13 ; that the American Loan & Trust Company has suspended business and been placed in the hands of a receiver for liquidation and dissolution; that its charter, among other things, provided that “ every director shall be personally liable for all debts incurred by the corporation during his administration to an amount not exceeding five thousand dollars; ” and that defendant continued to be a director when the corporation’s indebtedness to plaintiff was incurred.

To this defendant demurred, alleging as grounds thereof, that the court below was without jurisdiction of the subject matter of the action, that there was a defect of parties plaintiff and defendant, and that the facts were insufficient to constitute a cause of action. Plaintiff had judgment on the demurrer, which was sustained at general term in the court below. The Bank of Poughkeepsie v. Ibbotson, 24 Wend., 473, is to the effect that an action ;at law to recover the amount of his demand may be maintained by a single creditor against a single stockholder to enforce the latter’s liability under a statute which provides that for all debts due and owing by the corporation at the time of its dissolution the persons composing it shall be individually responsible to the ■extent of their respective shares of stock, and is, therefore, decisive of the questions presented on this appeal concerning the jurisdiction of the court below and the nonjoinder of parties plaintiff and defendant.

The liability imposed upon defendant by the charter of the American Loan & Trust Company is in all respects similar to that, enforced in The Bank of Poughkeepsie v. Ibbotson, and there is an obvious distinction between that case and the class of cases relied on by the appellant, Hornor v. Henning, 93 U. S., 228, and Anderson v. Speers, 21 Hun, 568. In the last mentioned cases the liability of the stockholder or officer of a corporation for its debts-extended only to the excess of liabilities over and above the assets, the amount of which was ascertainable only by means of a discovery and an accounting, remedies which are peculiar to courts-of equity.

The allegations of the complaint are claimed to be defective fertile purposes of a cause of action because of the omission to recite that judgment was recovered against the American Loan &. Trust Company for its indebtedness to plaintiff, and the issue of execution thereunder, but counsel for appellant does not refer us-to any need for these recitals. Nor do the cases cited by him to-sustain this ground of demurrer, Stephens v. Fox, 83 N. Y., 313; Allen v. Clark, 108 id., 269; 13 St. Rep., 609, so hold.

The decision in both cases was not that the recovery of judgment against the corporation for the amount of its indebtedness is essential to the maintenance of an action to enforce the stockholder’s or officer’s statutory obligation, but that such a judgment is admissible in evidence and constitutes prima facie evidence of the indebtedness. If defendant’s liability, as in Hornor v. Henning and Anderson v. Speers, supra, extended only to the excess of the corporation’s liabilities over and above its assets, it might be construed as a security only for the payment of debts,, and the need for the recovery of judgment and execution thereunder, wholly or partly unsatisfied, be existent to prove the corporation’s default. As it is the defendant is liable as an original debtor. Wolverton v. Taylor, 28 Am. & Eng. Corporation Cases,, 647.

The judgment appealed from should be affirmed, with costs.

Bookstaver and Pryor, JJ., concur.


text:
    George Merritt, Resp’t, v. Thomas F. Goodrich, App’lt.

      (New York Common Pleas, General Term,

      Filed February 6, 1893.)

    Corporations — Liability op director por debts op the company.
    The liability of a director of the American Loan & Trust Co., imposed by its charter, for all debts of the corporation incurred while he continued to be a director, is enforceable in an action by the creditor without joining other creditors or directors; and the prior recovery of judgment, against the company is not essential to its maintenance.
    Appeal from a judgment of the general term of the city court: of New York, affirming a judgment for plaintiff entered upon a verdict directed by the trial court.
    Action by the assignee of a creditor of the American Loan &: Trust Company, to enforce defendant’s liability as a director under a provision of the charter of the company that “ every director shall be personally liable for debts incurred by the corporation during his administration, to an amount not exceeding five thousand dollars.’’

      Marshall P. Stafford, for resp’t; Payson Merrill, for app’lt.
   Bischoff, J.

The questions involved on this appeal do not, in any respect, differ from those determined by us in State Barde of Bock Valley v. Andrews, the decision wherein is herewith handed down. In that case our conclusions were that the defendant’s liability to a creditor of the American Loan & Trust Company, imposed by its charter, for all debts of the corporation incurred while he continued to be a director, is enforceable in an action at law instituted by the creditor without joining other creditors or directors; and that the prior recovery of judgment against the company, and return of execution issued thereunder, were not essential to the maintenance of the action.

The judgment of the general term of the court below should be affirmed, with costs.

Bookstaver and Pryor, JJ., concur.


author: Van Wyck, J.

text:
    Moritz Steinberg, App’lt, v. Frank Tyler, Resp’t.

      (City Court of Brooklyn, General Term,

      Filed February 27, 1893.)

    Pleading — Fraud.
    The complaint alleged that, as an inducement to plaintiff to enter into a contract to purchase certain land of defendant, the latter agreed to furnish, at the time of passing title, a man competent and willing to make certain alterations for $1,000; that plaintiff entered into such contract, and made a payment, and that defendant refused to comply with his agreement, to plaintiff’s damage. Held, that it set forth a good cause of action.
    Appeal from judgment entered upon order dismissing the complaint.

      H. & F. A. McCloskey, for app’lt; George F. Elliott, for resp’t.
   Van Wyck, J.

This is an appeal from a judgment entered upon an order dismissing the complaint on the ground that the complaint did not state facts sufficient to constitute a cause of action.

The complaint alleges that the defendant entered into an agreement with the plaintiff that he would furnish, at the time of passing title, a man competent and willing to make certain alterations on .certain premises for $1,000, if plaintiff would enter into an executory agreement with defendant to purchase from the latter the tsaid premises for $3,750, $200 thereof to be paid at the time of execution thereof; that plaintiff did enter into such executory contract to purchase the same, and paid $200 in cash; that plaintiff was ready and willing to take title and pay the balance of purchase price at the time fixed in the contract, provided the defendant furnished a person competent and willing to do the work of alterations for $1,000, and that defendant refused to comply with his contract in this respect, to plaintiff’s damage $500.

This sets up a good cause of action, provided the entire contract is in writing, and, as there is no allegation that any part of it is not, it must be assumed that it is all in writing. Hurlimann v. Seckendorf, 46 St. Rep., 301.

It seems to us, in another view of the allegations, that a good cause of action can be fairly spelled out in the complaint, viz.: that plaintiff was induced to enter into this executory contract for the purchase of the premises, and the paj-ment of $200, by his belief in and reliance upon the false and fraudulent representation made by defendant for the purpose of deceiving the plaintiff, that the specified alterations could be made for $1,000. Schumaker v. Mather, 133 N. Y., 590; 44 St. Rep., 754; McIntyre v. Buell, 132 N. Y., 192; 43 St. Rep., 715.

The judgment and order appealed from must be reversed, with costs.

Clement, Ch. J., concurs.


author: Clement. Ch. J.

text:
    William A. Parke et al., App’lts, v. James McCaldin, Resp’t.

      (City Court of Brooklyn, General Term,

      Filed February 27, 1893.)

    Charter party — Breach—Damages—Evidence,
    In an action against the owner of a vessel for breach of a charter party to carry lumber between Port Royal and New York, for as many voyages as could be made during a certain period, where the evidence as to whether plaintiffs could have procured another steamer is conflicting, the defendant should be permitted to prove that transportation could have been obtained by schooners and the cost thereof, and plaintiffs to prove damages for delays if so transported, and also the value of the lumber not transported at Port Royal and New York, from which facts the value of the charter party could be determined.
    Appeal from judgment in favor of plaintiffs for six cents.

      Parsons, Shepard & Ogden, for app’lts; Goodrich, Deady & Goodrich, for resp’t.
   Clement. Ch. J.

The defendant chartered to the plaintiffs the steamer Caroline Miller, to carry lumber from Port Royal to Few York city, for as many voyages as could be made during the period of eleven months from February 1, 1887. There was a provision in the charter-party that the defendant had the privilege of canceling the same after August 1, 1887, on giving sixty days notice in writing. The defendant claimed on the trial that, on August 3d, the written notice was served on the plaintiffs, and that the charter-party was, therefore, ended on October 1st On the other hand, the plaintiff testified that no notice of cancellation was ever given. The question whether the charter-party terminated on October 1st or on December 31st was litigated at length, and the jury found a verdict for plaintiff for six cents damages. It is conceded that, by such verdict, the jurors determined that the charter-party was not canceled and that the plaintiffs were entitled to recover damages for the failure of the defendant to carry out his contract between October 1st and December 31st, a period of three months. The proper rule as to the measure of damages is substantially the question involved on this appeal.

The learned trial judge, in his charge, said: “If you come to the conclusion that the plaintiff is entitled to recover in this case, the measure of damages is the value of this charter-party, the contract that has been broken, and that value is to be measured by what, in your judgment, with fair and reasonable efforts and diligence, the plaintiffs could have procured another vessel, steamer, I will say, of equal or satisfactory facilities, for bringing forward the lumber that they desired to bring from Port Eoyal to New York, and the excess of price that they would have been compelled to pay for such carriage over and above the $4.50 a thousand feet, for such number of thousands of feet as you may find the Caroline Miller might reasonably have been expected to bring, from the 1st day of October up to the 1st day of January, would be the measure of damages which they were entitled to recover.”

i The rule charged was correct, provided it was agreed between the litigants that other steamers could have been chartered during the time when the defendant was in default. One of the questions in dispute on the trial was whether a steamer could have been obtained or not, and the testimony which was given by the witnesses for plaintiffs was ample to justify the submission of that question to the j ury. The learned counsel for the defendant, in his brief, says that the question was submitted to the jury by the court, and that they determined that the plaintiffs could have obtained another steamer.

We are of opinion that, after the plaintiffs had proven that there was a breach of the contract and had given testimony tending to show that another steamer could not be procured, it was then competent to prove the value of the lumber at Port Eoyal, and also the value at New York city, after deducting charges and expenses. Such testimony was excluded at the trial on several occasions, and the judge said, “ I will hold you to the difference of freightage as the measure of damages.” This ruling was adhered to during the trial, and the charge is to the same effect. In this case, if the plaintiffs could not have procured another steamer, then the rule that the difference of freightage was the measure of damage did not apply, and if the jury found that another steamer could not be obtained, then they had no evidence of any damage, for the testimony had been excluded. The verdict of six cents does not show whether the jury decided that the plaintiffs could have procured a steamer or the opposite.

Where there is a breach of contract, the injured party is entitled to recover damages as an indemnity for the loss sustained. The plaintiffs, if they could not secure transportation for their lumber, were not without remedy on the failure of the defendant to keep his contract In the case of Bracket v. McNair, 14 Johns., 170, a contract was made to transport four hundred barrels of salt from Oswego, New York, to Queenston, Canada. The defendant failed to keep his contract, and the plaintiff, by reason of an embargo, was unable to ship the salt. Held, that the plaintiff was entitled to recover the difference in value of the goods at Oswego and Queens ton, less the cost of transportation. Ogden v. Marshall, 4 Seld., 340, was an action brought to recover damages for failure to transport corn from New York to Liverpool, and it was there held that the difference between the price agreed upon for freight and that for which it could have been carried by another ship at the time was the measure of damage.

In that case, it appeared that other transportation could have been procured, but at an increased rate. Judge Jewett cites Bracket v. McNair, supra, with approval, as laying down the proper rule of damage where the opportunity of transportation was wholly lost. In another case, O'Conner v. Forster, 10 Watts, 418, there was an agreement to transport one thousand bushels of wheat by canal from Pittsburgh to Philadelphia, which agreement the defendant failed to keep. The court allowed the plaintiff to show the value of wheat at Pittsburgh and Philadelphia, and charged the jury that if other transportation could be obtained, then plaintiff would be entitled to recover the difference in freight, and damages by reason of the delay, but that, if no other transportation could be obtained, then the difference of prices at Pittsburgh and Philadelphia would be the measure of damages. The supreme court,of Pennsylvania upheld the law as laid down by the trial judge. The authorities before quoted have never been distinguished, and though no late cases in this state can be found, in other states there are many authorities directly in point. The rule laid down in the 8th ed. of Sedgwick on the Measure of Damages, § 842, is the correct one, and the authorities are there collated, and their citation in this opinion is, therefore, not required.

We think that the defendant should have been permitted to prove in this case that transportation could have been obtained by schooners and the cost of such transportation, and that the plaintiffs might prove damages for delays if the lumber was transported by schooners, and, as stated before, that the plaintiffs should have been allowed to prove the value of the lumber not transported at Port Royal and New York. The jury, under proper instructions, based upon the law as laid down in the cases before cited, could then determine the value of the charter party. We hold that the rulings below were correct as to remote profits. Harvey v. Connecticut & Passumpic Rivers R. R. Co., 124 Mass., 421.

It follows that the judgment and order denying new trial must be reversed, and a new trial granted ; costs to abide the event.

Van Wyck, J., concurs.


author: Osborne, J.

text:
    Peter Delap, Resp’t, v. The City of Brooklyn, App’lt.

      (City Court of Brooklyn, General Term,

      Filed February 27, 1893.)

    Condemnation proceedings — Award—Purchaser at foreclosure sale.
    Where the owner of land mortgaged the same prior to the passage of chap. 559, Laws 1871, under which a portion of the land was taken, and the mortgage was foreclosed and the premises sold prior to the confirmation of the commissioner’s report, the mortgagors are thereby deprived of all claim to the award, and the right thereto passes to the purchaser at the sale.

      Appeal from judgment in favor of plaintiff entered upon a trial by the court without a jury.

      Jackson & Burr, for resp’t; Almet F. Jenks, for app’lt.
   Osborne, J.

This action was brought to recover the amount of an award made for the taking of land by the city of Brooklyn under chap. 559 of the Laws of 1871, passed April 19,1871, and commonly known as the “ Act for the widening of North Second street.” Plaintiff had judgment below, and this appeal is taken from said judgment.

Plaintiff’s claim arises under the following circumstances : On and prior to February 6, 1871, John J. McCabe and Edward A. McCabe were the owners of a lot on North Second street, and on that date they mortgaged said lot to one Delaplaine, to secure the payment of $1,500. In September, 1875, an action was commenced to foreclose said mortgage which resulted in a judgment of foreclosure and sale on February 8, 1876, and thereafter and on March 16, 1876, the said lot, as a whole, was purchased by the plaintiff, who has ever since remained the owner thereof, and has paid the taxes annually levied on the whole of said lot by the city.

After the passage of said act, such proceedings were had thereunder that commissioners were duly appointed to ascertain and report the damages sustained by the property owners by reason of the taking of the land for such widening, and the report of the commissioners was confirmed by the supreme court on November 9, 1876. From that report, it appears that a strip of about.fourteen feet in depth was taken off the front of said lot, and an award was made to John J. McCabe and Edward McCabe, as owners, of the sum of $1,000, as damages for such taking.

In the case of Englehardt v. The City of Brooklyn, 44 St. Rep., 474. which was also a case arising under the act for the widening of North Second street, we laid down the principles which, in our opinion, governed actions of a similar character to the one now before us. We there held that a mortgage by the owner of a lot taken for such widening, made subsequent to the passage of said act, amounted to an equitable assignment of the award to the mortgagee, and that, on a foreclosure of such mortgage, the purchaser at the foreclosure sale was entitled to the award. This case presents a much stronger claim in favor of the plaintiff, for here the mortgage was made prior to the passage of the act, and the foreclosure and sale thereunder was had prior to the filing of the commissioner’s report. The plaintiff, as purchaser under the foreclosure of the mortgage, acquired all the interest and estate of the mortgagees as it existed at the time of making the mortgage. Rector, etc. v. Mack, 93 N. Y., 488; Batterman v. Albright, 122 N. Y., 484; 34 St. Rep., 131.

In Donnelly v. The City of Brooklyn, 121 N. Y., 9; 30 St. Rep., 501, referring to said act, the court of appeals says: “ The effect of the act is to condemn the land for the purposes of the improvement provided for, and to authorize the city to appropriate such land, for such purposes, subject to the obligation on'its part of making compensation therefor, as provided by the act." The taking was constructive only, and for a period of about twelve years after the making of the commissioners’ report the city took no steps to pay the compensation awarded for the taking, nor did the property owners make any claim for the awards made. The city continued to tax the property so constructively taken, and' the owners remained in undisturbed possession.

It is admitted on the part of the defendant that no person, other than the plaintiff, has ever demanded payment of the award in question. We think that it is clear that, when the lot was sold under foreclosure, the mortgagors were deprived of all claim to the award, and that it passed to the plaintiff as purchaser at the foreclosure sale, and that he is entitled to recover the same. The case of Home Insurance Co. v. Smith et al., 28 Hun, 296, relied on by the learned counsel for the appellant, is not in point, for in that case it appeared that the purchaser under the foreclosure sale bought the mortgaged premises “ subject to the proceedings theretofore had or then pending,” for the taking of the land, the award for which was there in dispute. Indeed, it may well be remarked that the law generally laid down as to the disposition of awards made for lands taken for public purposes as between owner and mortgagee has slight application to the rights of parties under the North Second street widening act As the court of appeals says in the Donnelly case, supra, “ The case is sui generis, and must be determined from a consideration of its peculiar character and circumstances.”

We think that the judgment should be affirmed, with costs.

Yah Wtck, J., concurs.


author: Clement, Ch. J.

text:
    William E. Devlin, Resp’t, v. Louis O. Kosel, App’lt.

      (City Court of Brooklyn, General Term,

      Filed March 1, 1893.)

    Replevin — Chattel Mortgage.
    Defendant was introduced to plaintiff as one who wished to buy a pair of horses, and made an arrangement to purchase the horses, a truck, harness, etc., but said he could not pay until the following day. He obtained permission to use the property the next morning, but when asked for payment refused to pay unless the amount of a certain chattel mortgage on the harness was deducted. This mortgage he had held some time, ana plaintiff claimed it had been paid. In an action of replevin, lb Id, that a verdict for plaintiff was pioper; that a party cannot foreclose a mortgage in the maimer attempted by defendant.
    Appeal from judgment in favor of plaintiff, entered upon verdict

      Hurd, & Grim, for resp’t; W. J. Courtney, for app’lt.
   Clement, Ch. J.

This action was brought to recover possession of certain chattels, two horses, one set of double harness, one pair of blankets, one canvas truck cover, two ropes and one double truck, of the value of $700. On the 6th of January, 1892, the defendant was introduced to the plaintiff by one Evans, as a party who wished to purchase the team of horses in suit After some negotiations, the defendant agreed to buy the chattels above described for the sum of $700. The defendant paid the plaintiff the sum of $200, and was to pay the balance on the following morning. The plaintiff returned the $200 to the defendant, saying “ Kosel, I don’t know you; the best thing you can do is to pay me the $700 to-morrow morning nine o’clock.” Kosel then said he would give his check for the $700, and went into his office, and after looking at his check-book, stated that he had only $600 on deposit. Plaintiff told him, Well, you pay me the whole business to-morrow morning at nine o’clock.” The parties then went to the stable of one Shotwell, where the horses were kept, and the defendant asked permission of the plaintiff to use the horses and truck at seven o’clock in the morning. Plaintiff gave his consent, provided his man should act as driver. Between two and three o’clock in the morning, the defendant took out the team and truck from the stable, and at nine o’clock the plaintiff called upon the defendant to receive his money, who then said that he had found out that there was a mortgage on the property for $425. The following facts were undisputed, that the defendant himself held the mortgage by assignment from Frederica Grandeman, that he had held such assignment for several days before January 6th, that the mortgage only covered the harness which was worth only forty dollars, and that the defendant demanded to be allowed a credit of $425 on the purchase price, and refused to return the property. The plaintiff testified at the trial that the mortgage had been paid.

On the foregoing statement of facts, it is difficult to see how the jury could, have found a verdict for the defendant If the defendant told the truth on the trial, even then he was in the wrong. When he found that the plaintiff disputed the mortgage he should have returned the property and foreclosed his mortgage. The jurors evidently thought that the defendant obtained the property by trick, in order to compel the plaintiff to allow the mortgage. A party cannot foreclose a mortgage in the manner attempted by the defendant, who had the right to refuse to complete his purchase until the mortgage was satisfied, but, in the meantime, it was his duty to return the property to plaintiff when demand was made. The exceptions at folios 59, 148 and 164 were not well taken. The defendant offered to show that there was a mortgage of $100 on the truck which he, defendant, had been compelled to pay since the commencement of the action. In an action of replevin, the jurors, when the verdict is for plaintiff and the property is in possession of defendant, assess the value of the chattels at the date of trial. Sec. 1726 of Code. The testimony would bé admitted, if at all, to reduce the value of the property, but the difficulty is that the defendant has the option, under the judgment, to return the property or pay its value. If he is allowed a reduction of $100 in the value, and afterwards returns the property, he would not receive the $100 which he has paid out.

The exception at fol. 81 cannot avail the defendant, where counsel wanted to show all that he said when the team was taken away from the stable. Plaintiff’s question was, “ I don’t ask you to say what he said: what did he do ? ” We have carefully considered the other exceptions in the case and can discover no error.

The counsel for defendant does not complain of the rule of damages adopted at the trial, and no point is made that the damages are excessive.

Judgment and order denying new trial affirmed, with costs.

Yajst Wyck, J., concurs.


text:
    Barbara Miller, Resp’t, v. Frederick P. Gilbert et al., App’lts.

      (City Court of Brooklyn, General Term,

      Filed March 7, 1893.)

    Will — Vested remainder.
    Testator died leaving a widow and four sons, and a will drawn by himself, which provided that his wife should have uncontrolled use and occupancy of his three houses and lots as long as she should continue his widow, but if she ceased to be his widow by death, said houses should be sold and the moneys divided among said sons; if she ceased to be his widow by marriage, the houses to be sold and one-half the moneys to be her’s as long as she lived and then revert back to his children; the other half to be divided among his children. He also made provision for equality among the children. One of the sons became bankrupt and died before the widow, Having children. Another conveyed his interest and died before the widow, leaving children. In an action for partition brought by the grantee of the second son who died, Held, that testator intended to give all his property to his sons, subject to the l'fe estate of the widow provided she did not remarry; that the direction for a sale on the death or remarriage of the widow was merely a provision for the equal and convenient division among his sons, and that they took vested interests on his death, which passed by the aforesaid deed and bankruptcy proceedings.
    Motion for a new trial on exceptions, after judgment for plaintiff.

      Theo. Burgmeyer, for resp’t; Hugh A. McTernan and Edgar Whitlock, for app’lts.
   Osborne, J.

One Raphael Gilbert died June 6, 1863, leaving a holographic will dated March 16, 1852, which was duly admitted to probate August 3, 1863. Said will is, in part, as follows : " This my last will and testament. Be it known by these premises to all whom it may concern, that I, Raphael Gilbert, of the city of Brooklyn, in the state of Mew York and of the United -States of America, do give to my wife, Maria, on the day of my death a free and uncontrollable use and occupancy of my houses and lots situated Mo. 121 Prospect street, 151 York street and ■335 Bridge street, as long as she shall continue my widow, but if she shall cease to be my widow by death, then the aforesaid ffiouses and lots shall be sold and the moneys arising therefrom shall be equally divided among my children, viz., Philo Baker Gilbert, Wesley Oárlo Gilbert, Henry Still Gilbert, Wilbur Fisk Gilbert, or their heirs. But if she shall cease to be my widow by marriage, then the aforesaid houses and lots shall be sold, and one-half of the moneys arising therefrom shall be her’s, to be used for her benefit and comfort as long as she shall live, and then it shall revert back to my children and be equally divided among them ; and. the other one-half of the moneys arising from the sale of the aforesaid houses and lots shall be equally divided among my children as aforesaid.” Testator also made a similar disposition of' his furniture and other household chattels for the benefit of his widow and children, providing, however, for a division thereof in kind, instead of directing a sale thereof Then follows a legacy of ten dollars to each of his children, adding as follows : “ I have given to each of my children $100 more or less, except Wilbur, which sum shall be paid to him to make him equal with the others.” No executors were named in or appointed by said will.

The testator left him surviving his widow and said four sons as his only heirs-at-law. The widow, Maria, died January 31, 1891, never having remarried.

In 1868 Philo B. Gilbert was adjudged a bankrupt, and all his property was conveyed to his assignee, and subsequently, by virtue of sundry mesne conveyances, became vested in the defendant, Oarrie G. McClellan. The said Philo B. Gilbert pre-deceased his mother, leaving children, his heirs at law, him surviving.

On April 18, 1879, the said Wilbur F. Gilbert, with his wife, conveyed all his right, title and interest, and share in the said premises, to one George F. Miller, and subsequently, by virtue of sundry mesne conveyances, the same became vested in the plaintiff. The said Wilbur F. Gilbert also pre-deceased his mother, leaving children, his heirs at law, him surviving.

Wesley C. Gilbert survived his mother, and died May 26, 1891, and under his will his interest in said real estate has been conveyed to his brother, the defendant, Henry S. Gilbert, whose ownership of a one-half interest in said premises is not here disputed.

This action was commenced for a partition of said premises.

The learned trial judge has found inter alia as conclusions of law, that, under said will, and by the laws of this state, said four children of the testator, on his death, became seized of a vested remainder in fee in said premises, subject only to the life estate of testator’s widow ; also that the provision for the sale of said premises at the death of testator’s widow was not an equitable conversion into money, and a gift of personal property at her death, but only a direction and authority for the convenience of division, and solely for that purpose. An interlocutory judgment has been entered in accordance with said findings and conclusions.

The appellants, the children of Wilbur F. and of Philo B. Gilbert, have filed exceptions to said conclusions, and seek to obtain a new trial on said exceptions. Their contention is that, under the will, there was no devise of the lands, but only of the proceeds of sale thereof, which were to be divided among the testator’s children at, and not until, the death of the widow; that there was an equitable conversion of the realty into personalty on her death; that nothing passed under the deed of Wilbur F. Gilbert and under the bankruptcy proceedings against Philo B. Gilbert, and that, as they both pre-deceased their mother, the testator’s widow, their children are now entitled, on her decease, to take the share of their respective fathers.

It is a fundamental principle in the construction of wills that the intent of the testator is to be determined from the instrument taken as a whole rather than from isolated or particular phrases, and this rule applies with greater force where, as in the present case, the will was drawn by the testator himself, and the form thereof and the language and expressions used clearly indicate that the draftsman was unskilled in matters of that character. Lytle v. Beveridge, 58 N. Y., 592. Applying this rule to the will before us, we are of the opinion that the testator intended to give all his property to his four sons, to be equally divided between them, subject only to the life estate of the widow in the whole thereof, provided she did not remarry ; but in case she remarried, then she was only to have a life estate in one half of the realty, and the other half was “ to revert back to my children,” as the testator puts it. We think that a fair and reasonable interpretation of the words “ revert back ” indicates that the testator assumed and believed that by the preceding language he had already vested his real estate in his children in equal shares, subject to the use thereof by his widow during her life or widowhood. His disposition of his personal estate, furniture, etc., is in the same direction, as well as the legacy of $100 to his son Wilbur “ to make him equal with the others.” Nowhere in the will is there the slightest indication, on the part of the testator, of an intent to create a trust during the life of his widow, or to tie up his property till her death. On the contrary, in the closing clause of his will, he directs that, if it should be necessary to sell any part of his realty to pay mortgages or debts, “ let it be sold and the remainder of my property shall be disposed of as aforesaid.” Here again the use of the words “ disposed of ” would seem to indicate that the testator assumed that he had effectually devised and bequeathed all his property, and not that he had established a trust during the life or widowhood of his widow with a gift of the proceeds of the sale thereof on her death.

Nor can we see that the use of the words “ or their heirs ” following the names of the testator’s children works in support of the appellants’ contention. Bearing in mind that the testator was unskilled in the use of legal phraseology, those words were, we think, intended to be used to vest his realty absolutely in his children; but even if they should be construed as words of substitution, then, on well settled rules, they should be construed as referring to the contingency of the death of one or more of testator’s children during his lifetime. As all of testator’s children survived him, the words of substitution, if they were such, would be inoperative.

The direction given by the testator that, on the death or remarriage of his widow, his real estate should be sold, was merely a provision for the equal and convenient division of his-property; it consisted of three houses and lots incapable of equal partition among his four sons, and the direction for a sale was the simple and natural method of arriving at what each son should be entitled to out of his property.

Ample authority for the construction that we have given to the testator’s will is to be found in the case of Snell v. Tuttle, 44 Hun, 324; 7 St. Rep., 615; Goebel v. Wolf, 113 N. Y., 405; 23 St. Rep., 176, and Matter of Anna M. Tienken, 60 Hun, 418; 39 St. 883; affirmed 131 N. Y., 391; 43 St. Rep., 184. The will construed in the last cited case contains substantially the same provision as the will in question with reference to the sale of real estate held in trust for testator’s wife, and the division of the proceeds among testator’s children on her death, and the court there held that testator’s children on his death took vested interests in such real estate, subject to the life estate of the testator’s widow.

We think that the exceptions should be overruled and the motion for a new trial denied, with costs.

Clement, Oh. J., concurs.


text:
    Michael Hassett, App’lt, v. Patrick J. McArdle, Impl’d, Resp’t.

      (City Court of New York, General Term,

      Filed February 8, 1893.)

    IT on suit — Partnership.
    In an action on an agreement alleged to have been made by a firm and signed by one of the members thereof, it was claimed that said firm had previously been dissolved. D., the one who signed, testified that he remained a partner until the year after the contract was made, when a notice of dissolution was published, and that he had as much right .there at the time as he had ever had before. There was evidence that previous thereto D. had signed a paper consenting to a dissolution and assigning all his title to said firm to his partner, but he testified that this was done for protection, and that he afterwards had tne same rights there. After that both partners signed firm checks. Held, that as there was some evidence tending to prove plaintiff’s cause of action against the other partner, it was error to grant a. nonsuit as to him.
    Appeal by plaintiff from judgment dismissing the complaint us against defendant McArdle.

      Hyland & Zabriskie, for app’lt; Cardoza Bros., for resp’ts.
   Van Wyck, J.

Plaintiff’s action is to recover damages for breach of a contract made, as alleged, by M. Donnelly & Go., then composed of the two defendants, Michael Donnelly and Peter J. McArdle. The defendant McArdle appeared at trial and defended, but the defendant Donnelly did not

After the close of plaintiff’s evidence, and before defendant rested liis case, he moved to dismiss the complaint, and the court dismissed as against defendant McArdle, and directed a verdict against defendant Donnelly, -who did not defend at trial. The plaintiff duly excepted, and took this appeal from the judgment of dismissal against McArdle. This was a non-suit, and will be reviewed as such. If the record shows any evidence, however slight, tending to jtrove the plaintiff’s cause of action against defendant McArdle, it was not within the power of the court below to dismiss the complaint or order a non-suit; nor could the non-suit have been granted on the assumption that plaintiff’s witness is not to be believed, but the court was bound to assume the truth of the facts which plaintiff’s evidence legitimately conduces to prove, although their correctness may be controverted by the defendant’s evidence.

Plaintiff’s evidence shows that the contract, on the breach of which this action is founded, was signed M. Donnelly & Co., on November 27, 1890, by defendant Donnell)', in the presence of and under the direction of Stephen, the son of defendant Mc-Ardle, and in the place of business at 134 Leroy street, this city, upon which the sign was, “ M. Donnelly & Co.; Rails, Scrap Iron and Metals,” and that printed at the top of this contract was the same firm and business description, and that the contract was for the transportation by plaintiff of 200 tons of iron for said firm. It is undisputed that Donnelly and McArdle were co-partners on November 7, 1889, and, as such, were then carrying on the business of buying and selling rails, scrap iron and metals, at this same place, 134 Leroy street.

The defendant, Donnelly, who was called by plaintiff, testified that he and McArdle continued as such co-partners until March 18, 1891, when McArdle caused to be published in the New York Herald a notice of dissolution as by mutual consent, and that after November 7, 1889, he, Donnelly, had as much right there as he had ever had before. This evidence, standing alone, is certainly a prima facie case for plaintiff as to defendants’" liability as co-partners.

However, while Donnelly was under cross-examination by counsel for defendant, and at defendant’s request, an agreement was marked in evidence as defendant's Exhibit No 1, and which was signed by Donnelly, dated November 7, 1889, consenting to a dissolution of the firm of M. Donnelly & Co., carrying on the rail and scrap iron and metal business at 134 Leroy street, and assigning all of his title to said firm and its assets to defendant, McArdle, and further consenting; why his consent was necessary if the sale was bona fide does not appear; that McArdle’s son, Stephen, should take charge of the business at 134 Leroy street. The plaintiff duly objected to this agreement being marked in evidence by defendant, and certainly he was not bound by it, but it was part of defendant’s evidence to contradict the witness, Donnelly, and, at best, only impeached his credibility, for Donnelly, in explanation, testified that he gave the bill of sale, this agreement, so designated in record, for protection; that he signed it, “but I still had as much right there as I ever had before. I signed the paper; but I never sold my rights there; the business continued in the name of M. Donnelly & Co.; ” that after this bill of sale was made, the firm of M. Donnelly & Co. continued to do business the same as it did before, and did over a million dollars afterwards, and that both he and McArdle signed M. Donnelly & Co. to notes in the bank, and then continuing under cross-examination, he testified that as late as “in 1891,1 claiming to be a member of the firm of M. Donnelly & Co., brought an action in the supreme court against Patrick J. McArdle for an accounting.” It is true, however, that defendant was again allowed to put in a part of his evidence while cross-examining this witness, for he had marked in evidence, as his Exhibit No. 2, the judgment only in that supreme court action, which was merely a nonsuit, and could not bind this plaintiff, who was not a party to that action, and hence had no legitimate hearing upon this case. The nonsuit in this action should not have been granted, and the judgment is reversed, with costs to appellant to abide the event.

McGown, J., concurs.


text:
    Meyer Hecht, Resp’t, v. Edward Brandus, App’lt.

      (City Court of New York, General Term,

      Filed February 8, 1893.)

    1. Contract — Employment—Damages.
    Defendant employed plaintiff under a contract for five years as manager of liis business of manufacturing silverware for a percentage of the net profits, which should not be less than a specified sum; it also provided that defendant could terminate it at any time on payment of $2,000, and that either party committing a breach thereof should, forfeit to the other $2,000 as liquidated damages, and not as a penalty. After about two years not being able to sell the business, defendant directed plaintiff to close down, sell the goods- on hand, and stop the business, which he did. Held, that it was plaintiff’s duty to obey his master’s instructions to the letter, and that by so doing he did not release or waive any of defendant’s obligations under the contract.
    2. Same — Offer of other employment.
    Plaintiff was under no obligation, under the circumstances, to accept an offer from defendant of work of a different character, viz.: that of salesman in a publishing business.
    Appeal from judgment for plaintiff entered on verdict directed by the court
    Cantor, Linson & Van Schaick, for resp’t; William R. Bronk, for app’lt.
   Van Wyck, J.

Plaintiff’s action is upon a written agreement between him and defendant, made on November 1,1889, whereby Brandus, defendant, engages for five years the services of Hecht, plaintiff, “ as general manager of his business of manufacturing and dealing in fancy silver wares, and agrees to pay him therefor a sum equal to twenty-fr ut of the net profits of his said not be less than $2,000 during each year, and to make up and pay any deficiency if the same shall not amount to said sum; and the said Hecht hereby accepts said appointment for the period stated, and agrees to give his entire time, and devote his utmost skill, energies and ability to the advancement of said business, and to accept for his services the share of the profits above stated.” The defendant, in pursuance of the contract, embarked in the business with plaintiff as his general manager, but being disappointed in its results, first made unsuccessful efforts to sell the same, and then determined to run it no longer, and dismantled his factory, and finally abandoned the business about three years before plaintiff's term of employment would have expired by the terms of the contract. Hence this action by plaintiff to recover $2,000 as liquidated damages under the following provisions of the original agreement: business, and covenants with said Hecht that said amount shall

“ Brandus shall have the right of terminating this agreement at any time upon the payment of $2,000 to said Hecht and a share of the profits up to the time of such termination. Either party committing a breach of this agreement shall forfeit to the other $2,000, as liquidated damages and not as a penalty, to be recovered by him in an action at law.” It is undisputed that defendant by his letter of December 1, 1890, notified plaintiff, his general business manager, as follows: “ Personally, I am positively through with the business and will run it no longer," and ‘‘please close down.” It was the servant’s duty to obey these instructions from his master, and his obedience in this respect was the master’s breach of the agreement as regards the continuance of the master’s business and servant’s employment And as the factory was immediately closed down and its dismantlement begun and the whole business was finally abandoned and closed on March 7, 1891, the plaintiff had an immediate cause of action for $2,000 under the above provisions of the agreement, unless he, as appellant contends, had abandoned, released or waived defendant’s obligations under the agreement to continue the business and plaintiff’s employment for five years, or to pay the plaintiff $2,000 as stipulated damages for failure to so continue the business or employment or for terminating the agreement as provided for therein.

The appellant’s main contentions as to abandonment, release or waiver by plaintiff of defendant’s obligations under the agreement, are that defendant’s letter of November 18, 1890, is, in itself, such release or waiver, and if not so in itself, then it is the foundation upon which a waiver or release by estoppel can be built from the subsequent acts of defendant in discontinuing his business and plaintiff’s employment, and in terminating the agreement, and which were induced by this letter and plaintiff’s acts and conversations. The appellant insists that plaintiff’s willing obedience to ■defendant’s instructions to shut down and dismantle his factory was a waiver or release by him of defendant’s obligations under the agreement to continue the business under plaintiff’s management for five years.

But such obedience cannot be so construed; first, because plaintiff was a servant and such instructions came from his master, and secondly, whether servant or copartner, the plaintiff had no legal right to object, for he had by the contract conceded to defendant the absolute right to terminate the agreement or to discontinue the business or employment whenever he saw fit to do so, and upon the exercise of such right he became liable to plaintiff in $2,000. Now as to this letter of plaintiff. The defendant testified that before he had received this letter he had “ lots of times ” directed plaintiff to sell the business and had “ asked him to do all he could to sell it.”

This letter treats almost solely of plaintiff’s efforts to make a sale of the business as instructed by defendant, and in it plaintiff says: “You (defendant) ask me what are my views as to my future; frankly, I had not given that a thought, but I certainly expect to perform all my obligations to you,” and then makes reference to going into some other business with defendant if this business is sold out. The defendant testifies that after receipt of this letter, “ Mr. Hecht, we looked around for several kinds of business, but we did not enter into any of them.” After all of these efforts of the defendant and his servant to make a sale of the silverware business and factory and to embark in some other kind of business had finally failed, we find the defendant, as was his legal right, assuming full and absolute control of his affairs and himself determining to shut down and dismantle his factory and abandon the business, without any regard to the previous unsuccessful efforts of himself and servant to sell the same and embark in another business, for he writes plaintiff, who is still his servant, on December 1, 1890, that “ if you are through manufacturing at the factory, please close down, as it is useless to make me pay the pay rolls every Saturday, if (I don't know) we have no orders. Personally I am positively through with the business and will run it no longer; ” and again on December 3d, “ I don’t wish to retain anybody at all at the factory, except Michael until Christmas. I want to stop all expenses, even one dollar. Therefore, sell all of our stock this month, with a profit, if possible; at cost, or below, if compelled. The reason I am determined to close up the business is, that this year has proven the worst of any, except first year; that I don’t want to pay out one single dollar more.”

It was not only plaintiff’s right but his duty to carry out, to the letter, these instructions from his employer, and in so doing he in no way released or waived any of defendant’s obligations under the original agreement, while a failure to so do would have rendered him personally liable to his employer for all resulting approximate damages, as well as to all subsequently employed subordinates-who might fail to hold the defendant liable for their wages by reason of this revocation by him of plaintiff’s former authority. The plaintiff in obedience to these instructions finally closed out the business and factory and delivered the keys to defendant on March 7, 1891. But the appellant contends that plaintiff was bound to accept employment from him and his partner, in the publishing business, for the remainder of the term at $40 per week, because defendant testified at folio 143 that he, at the time the keys were delivered, told plaintiff to have a talk with Hastings, defendant’s partner, about his employment by them; while Hastings, on behalf of defendant, testified that he had offered plaintiff employment as a salesman in their publishing business at $40 per week for remainder of his unexpired term. The plaintiff was under no obligation to accept this employment, for defendant’s liability to him for $2,000, as liquidated damages, had already been fixed, and moreover, he could not be forced to abandon the business of manufacturing silver ware, in which he had twenty-five per cent of the net profits as compensation for his services, and to accept employment as a salesman in the publishing business at the rate of $40 per week. And the proof is clear that plaintiff did not accept this latter offer, for the defendant, at folio 144, testified that the plaintiff said to him, immediately after this interview with his partner, “Mr. Brandus, Mr. Hastings has mentioned the subject about the publishing business, my being employed in it, and I must say I have not looked at my contract or considered it any, and I will give you an answer ■on Monday at one o’clock.” The answer which plaintiff gave on Monday will be found at folio 64 and says : “ Agreeable to my promise to let you have my reply to-day, I beg to say that I decide to stand by the contract made between us and shall expect payment of the $2,000 in accordance with the contract.”

In the view of the transactions and obligations of the parties which has herein been taken, it appears that there were no disputed questions as to any material facts, and that the facts which appellant was prevented from proving were immaterial to the legitimate issues of the case, and hence that the court properly directed a verdict for plaintiff for the $2,000, less the counterclaim which was not denied.

The judgment and order are affirmed, with costs.

McGown and Fitzsimons, JJ., concur.


text:
    John H. Rieger, Resp’t, v. William J. Swan, App’lt.

      (City Court of New York, General Term,

      Filed February 8, 1893.)

    Costs — Taxation—Waiver op objection.
    An objection to the reception of additional proofs at special term on appeal from a taxation of costs, cannot be raised for the first time at general term. The right to object, if not taken at the time such proofs are offered, is waived.
    Appeal by defendant from order of special term, on motion to review clerk’s taxation of costs.

      W. F. Severance, for app’lt; Palmer & Boothby, for resp’t.
   Van Wyck, J.

Plaintiff’s bill of costs, noticed for taxation before the clerk on March 24th, contained this item of disbursement: “Paid copy stenographer’s minutes, $13.60,” and the only averment in the affidavit annexed, to justify the taxation of this item, is that deponent, plaintiff’s attorney, “ says that the foregoing disbursements have been made or incurred in this action.” To the taxation of this item defendant duly objected, but the clerk overruled the same and taxed the item without first requiring plaintiff to make further proof specifying the grounds upon which the item might be allowed as a reasonable and necessary expense, for it seems that such further proof was not made before the clerk, although an affidavit, verified on the same day, and made on behalf of plaintiff, appears in the appeal book, and in which is specified the best grounds to have justified the clerk in allowing the item as reasonable and necessary; but theaffidavit upon which defendant obtained the order to show cause why this taxation should not be reviewed by the court at special term avers that the affidavit annexed to the bill of costs contained the only proof made by plaintiff before the clerk, and upon the hearing on this review plaintiff makes no denial of this averment, and hence we must assume that Nanz’ affidavit, although verified on March 24th, was not used on taxation before the clerk and was first read on March 27th upon the hearing at special term in review of the taxation. And so assuming, the conclusion is reached that the special term should and would have reversed the clerk’s ruling and disallowed this item if defendant had objected to the use of Nanz’ affidavit on such hearing in review, for the established rule is that the court at special term acts in such matters as an appellate tribunal. In other words, the appeal is only intended to review the errors actually committed by the clerk, on the proof before him at the time of taxation, and he cannot be put in error or justified by proofs furnished to the court after-wards unless the party seeking the review waives his right to object to the making of such additional proofs at special term and such party is deemed to have so waived this right by failing to object. The record does not show that defendant objected to the supplying at special term of the additional proofs by Nanz’ affidavit. The general rule is that defects and errors which, if pointed out, may have been supplied or avoided below, will not be available on appeal. It would be manifestly unjust to permit an objection for the first time at general term which the party had every opportunity to present at the special term and which, if made, might have been obviated. If this defendant had objected at special term to the supplying of the additional proof to justify the allowance of the item of disbursements objected to bv him it could have been obviated, for the court at special term had, under § 3265 of the Code, the authority to send the matter back to the clerk with instruction for him to allow this contested item upon the proofs as contained in this very same affidavit, for this section says that upon such review of taxation by the court, “it may direct a new taxation before the proper officer, specifying the grounds or the proof upon which the item may be allowed or disallowed by him.” The order appealed from should be affirmed, but as the clerk in allowing the contested item upon the proofs before him at the time of the taxation was in error, the defendant should not have had costs awarded against him, and the order in so far as it so awards costs is reversed and otherwise it is affirmed.

Fitzsimors, J., concurs.


author: Fitzsimons, J.

text:
    Lewis Gold, Resp’t, v. Mary E. Serrell, App’lt.

      (City Court of New York, General Term,

      Filed February 8, 1893.)

    1. Brokers — Commissions—Agency.
    Defendant’s brother was her general agent and had authority to sell certain premises owned by her for $19,500, provided he received compensation from the buyer for his services, and gave the same to plaintiff, as broker, for sale. Plaintiff found a purchaser who was willing to pay $19,900, and presented the offer to defendant’s brother, who signed the contract, and finally a deed was given by defendant, to said purchaser. Held, that the brother had authority to accept such offer, and that plaintiff was entitled to his commissions.
    2. Reference — Report—Direction of judgment.
    Where the terms of the judgment to which the successful party is entitled is evident from the referee’s report, his report is sufficient under § 1082 of the Code, although it does not expressly direct such judgment.

      Appeal from judgment in favor of plaintiff.

      George W. Dease, for resp’t; Isaac N. Miller, for app’lt.
   Fitzsimons, J.

The defendant in July, 1890, owned 111 Hester street, this city. Her brother, John Gf. Lyons, was her general agent, and whatever he agreed to do concerning said property bound her and she was willing to abide thereby.

On July 31. .1891, she wrote him authorizing him to sell said premises for $19,500, provided he received compensation from the buyer for his services.

The plaintiff, a real estate broker, about the time above mentioned, had several interviews with defendant’s said brother concerning the sale of said house, which was offered for sale for $20,000 to him as a broker.

He, plaintiff, found a buyer ready, able and willing to purchase said premises for $19,900 cash, which offer was finally accepted by defendant’s said brother, who signed the contract of sale for his sister, and finally the deed to said premises was executed and delivered by defendant, through her brother,, to the persons procured by plaintiff as purchasers.

The defendant refused to pay the usual commission of one per cent, hence this suit for $199. Judgment was rendered by the referee in plaintiff’s favor.

The defendant’s brother acted, throughout all his dealings with plaintiff, as her agent, and as he was her general agent, and as all things which he done concerning said premises was satisfactory to and approved by her, therefore, his acceptance of the offer of $19,900 for the sale of said premises was valid, which offer and final sale was procured and induced by and through the agency of plaintiff.

The plaintiff earned his commission and was entitled thereto. Therefore, the judgment in his favor was rightful, and must be affirmed.

The appellant’s objection that the referee’s report fails to direct judgment, as required by § 1022 of the Code of Civil Procedure, is without merit

From the referee’s report it is- very evident what are the terms of the judgment to which the plaintiff herein is entitled, that being so, the referee has complied with § 1022, and his report is sufficient. Hinds v. Kellogg, 37 St. Rep., 356.

Judgment affirmed, with costs.

McGown and Van Wyck, JJ., concur.


text:
    Sarah McHugh, Adm’rx, Resp’t, v. Jules Astrophe, Ex’r, App’lt.

      (City Court, of New York, General Term,

      Filed February 8, 1893.)

    1. Calendar — Short cause.
    Any cause may be taken out of its regular place on the calendar and made a preferred cause, and a speedy trial ordered, if justice so requires, even though it be an equity case.
    2. Same.
    The fact that the order recites that the trial shall take place in a part of the court not designated for the trial of equity causes is not material where it has been regarded as a clerical error, and the cause placed on the calendar of the proper part.
    3. Same — Motion costs.
    Such an order should not be granted where the plaintiff has failed to pay motion costs awarded to defendant by a prior general term.
    Appeal from order directing that the cause be placed on the short cause calendar.

      Emile B. Morel, for resp’t; Booraem, Hamilton & Beckett, for app’lt.
   Fitzsimons, J.

This being an equity action the trial must be without a jury.

The order appealed from does not attempt to take away that right

The action was ordered for trial as a preferred cause on the short cause calendar, which is in the court a calendar made up of equity causes and actions on contract that may be tried within one hour.

The fact that the said order recites that the trial shall take place in Part 2 instead of Part 4, the latter being the equity trial part, is inconsequential, plainly a clerical error, and was so regarded by the calendar clerk and the attorneys for the parties hereto, because the action was actually placed on Part 4 calendar and there appeared and was answered to by said attorneys.

The justice sitting in that, part when it appeared for trial will try it without a jury as are all equity actions tried.

The justice who made the order had a right to do so, if in the interests of justice he deemed it proper to order a speedy trial herein.

The appellant cannot complain, having received due notice of trial.

Any cause may be taken out of its regular place on the calendar by the court and made a preferred cause and a speedy trial ordered if, as above stated, justice so requires.

• This is an inherent right which the court has and does not depend upon nor is it restricted by any section of the Code of Civil Procedure. 5 Civ. Pro., 66.

The only objection to the order is, that respondent failed to pay the costs awarded appellant by a prior general term of this court

The costs so awarded were motion costs, and until paid all proceedings of respondent are stayed by virtue of § 779 of the Code of Civil Procedure.

For this reason the order appealed from must be reversed; but without costs, with leave to respondent to apply again for such an order upon payment of the unpaid costs just mentioned.

McGrOwn and Van Wyck, JJ., concur.


text:
    Denis P. McCarthy, Resp’t, v. Patrick Gallagher, App’lt.

      (City Court of New York, General Term,

      Filed February 8, 1893.)

    Appeal — Judgment.
    Where the evidence is conflicting on all points, and there was sufficient, if believed, to sustain the findings of the court, the judgment will not be disturbed on appeal.
    Appeal from judgment in favor of plaintiff.

      H. A. Brann, for app’lt; Johnson & Johnson, for resp’t
   Fitzsimons, J.

The plaintiff is a painter, and the defendant is a builder.

The plaintiff agreed to paint houses Nos. 261 and 263 Madison street, owned by defendant, according to the terms of a certain written agreement

The plaintiff’s testimony is to the effect that he fully and fairly complied with the terms of his contract

The defendant’s testimony contradicts this statement, and claims that the plaintiff failed to do all the work he agreed to do, and that the work done was carelessly done and unworkmanlike, and that improper materials were used.

In this case, as in all cases of similar character, we find the defendant contradicting the plaintiff upon nearly every material and immaterial question involved, and in such event it was of course the duty and function of the trial justice to determine which party told the truth.

He did so in this case by selecting the plaintiff and his witnesses as the truthful ones, and as he had the advantage of seeing the witnesses, noticing the manner in which they delivered their testimony, and having the privilege of seeing the many things which usually occur during a trial, and which are indescribable, appealing to the instinct rather than the reason, but which just as surely as the most positive and convincing oral testimony point out where the truth lies, and as there is ample evidence to sustain his findings, and finding no errors, we would not be justified in doing otherwise than sustaining them.

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

McGown and Yan Wyok, J J., concur.


text:
    Rosa E. Rainford, Resp’t, v. Thomas J. Temple, App’lt.

      (City Court of New York, General Term,

      Filed February 8, 1893.)

    Supplementary proceedings — Contempt.
    A judgment debtor who has been served in supplementary proceedings is guilty of contempt where he, during the pendency of such proceedings, deposits money in bank, and then checks it out, although such money was loaned him for the purpose of paying the same to his debtors.
    Appeal from order adjudging defendant guilty of contempt

      Forster & Spier, for resp’t; James K. Averill, for app’lt.
   Fitzsimons, J.

This is an appeal from an order adjudging defendant guilty of contempt

The defendant, a judgment debtor, was served with the usual order in supplementary proceedings on April 6,1892. His examination commenced April 12th, and continued to May 20th.

Between April 6th and May 20 th, defendant deposited in his bank several hundred dollars to which he held the legal title.

This money was withdrawn from his bank by persons in whose favor he drew checks in payment of debts which he owed them.

This he has no right to do, even if, as he states, some of the money so deposited by him was loaned for the purpose of paying out the same to his debtors, as he did by the checks mentioned.

The moment the money reached his hands he became the legal owner thereof, and was forbidden, by the injunction contained in the supplementary proceeding order served upon him, to interfere with the fund mentioned.

Having paid out said fund in the manner described in violation of said order he was guilty of contempt, and the order appealed from was properly made and is affirmed, with costs.

McGown and Tan Wyck, JJ., concur.


text:
    Bernard A. Martin, App’lt, v. Louis Raffin, Resp’t.

      (City Court of New York, General Term,

      Filed February 8, 1893.)

    Service — Mode of — Assault.
    A process server called twice to serve defendant. On the second occasion he refused to accept service, when the summons and other papers were laid on his shoulder and he shook them to the floor. Held, that under the circumstances this manner of service was justifiable and proper, and that it did not involve an assault upon defendant.
    Appeal from order vacating and setting aside the service of the summons herein.
    Stickney, Spencer & Ordway, for resp’t; Frederick K. Clark, for app’lt.
   Fitzsimons, J.

This is an appeal from an order vacating and setting aside the summons herein and the service thereof upon defendant.

The defendant resides in Tremont; the process server called there twice to serve him with the summons herein, and some other papers.

On his second visit he found the defendant actually in the shelter of his wife’s petticoats, he having sought that means of protection for the purpose of avoiding service of the summons herein.

While in that position he was invited to accept service of the said summons, which he refused to do.

The summons and other legal papers were then laid upon his shoulder and he shook them to the floor.

The appeal is based upon two points.

I. That the service as above described involved an assault upon defendant’s person.

IL That it was affected by a trick, viz.: concealing the process among a number of other papers entitled in another action or proceeding.

I cannot imagine how the service in question involved an assault upon defendant; even the defendant swears that the papers served upon him were laid upon his shoulder.

No violence or force, or even show of violence or force, was used to accomplish the service.

He refused to receive them in his hand, and, therefore, in my opinion, the manner of service adopted was the only other way left to make service, and was certainly justifiable; in fact, the entire conduct of defendant was disrespectful to and exhibited a contempt for courts and legal process, which should not be encouraged by setting aside the service of the summons herein ; in fact, his conduct was so reprehensible, that it would please me to punish him for contempt if possible.

To say that a person may avoid service of legal papers by refusing to accept the same, is to degrade the law and courts in the eyes of persons like defendant

As to second point, that the service was effected by a trick, the mere recital of the means of service herein is a sufficiént refutation of that claim.

No trick was used, and the summons might easily have been seen and read by defendant if he chose to do so.

It was not concealed among the other papers served upon defendant at the time of the service of said summons.

The service herein, under the circumstances related, was proper.

The order appealed from is reversed, with costs, with leave to defendant to appear within three (3) days after service of order entered hereon upon defendant’s attorneys.

McG-own and Van Wyck, JJ., concur.


author: McGown, J. Fitzsimons, J.

text:
    Bernard S. Clark, Resp’t, v. Frank Tryon, App’lt.

      (City Court of New York, General Term,

      Filed February 8, 1893.)

    ■Bills and notes — Pkotest.
    Where the complaint on a promissory note alleges protest and notice, which is denied by the answer, the plaintiff cannot prove excuse for failure to protest without an averment of that character in the complaint.
    Appeal from a judgment entered on the verdict of a jury in favor of the plaintiff, on the 9th day of May, 1892, for the sum of $310.98, and also from an order denying the motion for a new trial.

      Francis H. Scott, for resp’t; Hahn & Myers, for app’lt.
   McGown, J.

This action was brought upon a promissory note, made by Christopher B. Keogh and Henry C. Smith, copartners, dated July 30, 1892, payable three months after date, to the order of the defendant Frank Tryon, at the Bowery Bank, for the sum of $186.05.

The complaint alleges the making of the note, its delivery to defendant Tryon, its indorsement by Tryon before maturity and delivery to the Kentucky Union Lumber Company and its subsequent transfer to the plaintiff.

Plaintiff alleges in his complaint, “ That he is informed and believes, that when said note became due and payable, it was duly presented for payment to the said makers thereof, at the said Bowery Bank, and payment thereof was duly demanded, but the same was not paid; and said note was duly protested for non-payment; that due notice of said demand of non-payment and protest was given to the defendant.”

And also alleges the non-payment of the note.

Defendant in his answer admits the making of the note, his indorsement, "and the delivery thereof to the Kentucky Union Lumber Company and the non-payment thereof. Denies its transfer to plaintiff, and that the plaintiff is now the owner and holder thereof, and,

Third. This defendant denies that he has any knowledge or information, sufficient to form a belief, that the note was duly presented for payment to the makers thereof at the Bowery Bank, and payment thereof demanded, and that said note was duly protested for nonpayment.

Fourth. He denies that due notice of such demand, non-payment and protest was given to this defendant.”

Defendant served with his answer an affidavit that he has not received notice of non-payment of the note.

The note became due on October 30th and Rovember 2, 1890.

Upon the trial, the note was put in evidence by the plaintiff, and plaintiff offered in evidence a letter written by the defendant to the Kentucky Union Lumber Company, dated December 10, 1892.

In the letter defendant says: “ If you positively refuse to do so, I shall not take any advantage of the failure of the notice of protest, and will pay the note, but, well, put yourself in my place and act accordingly.”

Defendant’s counsel objected to its admission as incompetent, etc., “ and that it is not within the pleadings, they being for a protest, not for a subsequent promise to pay, and that is what we came here to defend.”

The objection was overruled and letter admitted in evidence, and marked plaintiff’s' exhibit “ B,” to which ruling defendant’s counsel excepted.

The jury returned their verdict in favor of the plaintiff. The question raised upon appeal is as stated in the appellant’s brief.

“ Can the plaintiff, declaring against the indorser on presentation and protest of a promissory note in due form, prove excuse for failure to protest without any averment of that character in the complaint”

In Clift v. Rodger, 25 Hun, 39, the same question arose and was passed upon. The ,aetion was upon a promissory note made by one Margaret A. Bhoades, and indorsed by defendant.

The complaint, among other things, alleged “that said note was then and there duly protested for non-payment, of all which the said defendant" Bodger had notice.”

The plaintiff, upon the trial, before a referee, failing to prove that notice of dishonor of the note was given to the indorser, the defendant, sought to recover by showing that no notice was necessary, and that defendant was liable as indorser by reason of having taken the security of the maker, etc.

Evidence was admitted by the referee of certain facts with a view of showing that no notice of protest was necessary after it appeared that no notice of dishonor of note was given to the indorser.

The evidence was objected to and received against the defendant’s exception. Hardin, J., in his opinion says, “As a general rule, notice of presentment and nonpayment must be given to an indorser, as a condition precedent to a recovery against him. The exceptions to this rule are laid down in the cases in the state to be -where,

“(1) The indorser has taken a general assignment of the maker’s property.

“(2) Where there has been a waiver of the notice of protest, or it clearly appears that the absence of the notice did not, and could not, work injury or damage to the indorser. * * * The question presented sharply in this case is, can a holder recover, when he does not prove' notice of dishonor, and seeks to bring himself within one of the exceptions, without averring the fact or facts necessary to constitute the exception ?

“We have seen that without such proof the holder has nó cause of action. * * * In case he is not able to make proof of notice of dishonor, he needs to prove other fact or facts, and to that end he should aver that fact or facts which form an essential part of his cause of action. * * *

“ The proof, we have seen, was essential, and part of the plaintiff’s case, and without such proof he could not recover,’ and without an averment of the ‘ fact or facts ’ constituting his cause of action, he ought not to be allowed to make the needed proof.”

The judgment was reversed. All the judges concurring with Hardin, J.

In Garvey v. Fowler, 6 N. Y. Supr. Ct.; 4 Sandf., 667, in a similar case, all the judges concurring with Duer, J., held that as the plaintiff would be bound to prove such “ fact or facts ” he must aver them in his pleading.

Neither of the above cases, as far as we can ascertain after a careful examination, have ever been reversed, distinguished or modified.

We have also examined all the cases cited by respondent’s attorney in his brief and find nothing therein to change or modify the rulings in the cases above cited.

The admission in evidence, therefore, of the letter of defendant, plaintiff’s exhibit “ B,” by the trial justice was error, and the judgment and order appealed from must be reversed, with costs to the appellant to abide the event.

Fitzsimons, J.

I concur, because plaintiff was required to prove notice of protest; under the issue herein he could not show any excuse for failure to give such notice.