author: Van Brunt, P. J.

text:
    The Mayor, Aldermen and Commonalty of the City of New York, Resp’ts. v. Alexander Mason et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    1. Sale—Purchase at sale on terms—Waiter of prior agreements.
    When a party bids at a sale at which the terms are announced it will be construed to be a waiver of a prior agreement as to particular terms not included in those announced
    3. Evidence—Leases—Merger in of all prior oral understandings BETWEEN THE PARTIES.
    When a person accepts a lease he will he prevented from disputing the same, on the ground that it does not contain prior agreements, by reason of the well settled rule that when a written agreement is entered into, the whole contract is embraced therein, all prior and contemporaneous negotiations and oral promises in relation to the subject matter are merged in the written agreement and the rights of the parties defined by its terms.
    In March 1815,' the department of docks, acting in behalf of the plaintiffs, advertised for sale certain leases of piers belonging to the plaintiffs for three years from May 1, 1815, which advertisement stated that the terms and conditions of sale would be stated by the auctioneer at the time of sale
    It is claimed by the defendants that upon application to the officers of said department, said piers being out of repair at one time, they promised to put the piers in tenantable condition provided the defendants would bid on them, and that the said officers said that the defendants could bid on them with safety as far as that was concerned, and that at others both prior and after the sale, they promised that the pier should be put into proper condition and with a sufficient depth of water for the use of the defendants, which is generally considered to be ten feet at low water.
    Terms of sale were adopted by the dock department which were read at the sale as announced in said advertisement, which among other things provided as follows:
    “The usual form of printed leases adopted by the department containing a clause requiring the lessee to keep the surface mooring, piles, string pieces in safe and proper repairs, and the steps adjacent to the premises dredged to proper depth of water during the term of the lease, to be signed by the lessee when notified that the same is ready for execution. Such dredging as may be necessary to give a depth of ten feet at low water will be performed by the department of docks as soon as possible after the execution of the lease.”
    ‘ ‘ The premises to be taken in the condition they are in on the 1st of May next. ”
    The defendants Mason and Foster bid for said leases, and they were knocked down to them, and they went into possession on May 1st, 1875, although they bad received no leases, nor had the dredging been done to give ten feet of water at low tide.
    In or about August, 1875, leases were exchanged between the parties, which leases contained the following provisions :
    “And the said parties of the second part, for themselves and their heirs, executors, administrators and assigns, do further covenant and agree to, and with the said parties of the first part, their successors and assigns, that they, the said parties of the second part, their heirs, executors, administrators and assigns, shall and will at all times, and at their own expenses, keep the slip hereby granted dredged, and will keep, put and maintain all the premises granted hereby in good and sufficient repair and condition, and in case the said parties of the second part make default therein, and continue in such default for the space of ten days after notice to make such repairs given by the department of docks, or any proper person or officer, the said parties of the first part, their successors or assigns, may make such repairs, and the full cost and expense of the same shall and will be paid on demand, by the said parties of the second part to the said parties of the first part, their successors and assigns.”
    And it was also covenanted, as follows :
    “And it is hereby declared by the parties to these presents, that no deduction from said rent shall be made by reason of such repairs of said premises, or any occurrence whatsoever whicb may happen during the time hereinbefore mentioned, except as herein stated.”
    The defendants remained in possession and paid their rent, except for the last quarter, which they refused to pay, and this action was brought to recover the same.
    The defendants for answer allege the facts aforesaid, and that the leases do not truthfully set forth the agreement between the parties, inasmuch as they do not obtain covenants that the plaintiffs should repair the piers, and dredge the slip adjacent thereto, and that such covenants were inadvertently omitted from such leases, and that by reason of the breach of this agreement they have suffered great-damage.
    Upon the trial by the court without a jury, judgment was rendered for plaintiffs, and from such judgment appeal is taken.

      A. J Ditierihoefer, fordef’tsand app’lts; David J. Dean, for pl’ffs and respt’s.
   Van Brunt, P. J.

The learned justice before whom this-case was tried, refuses to find that the leases as executed, did not truthfully or correctly set forth the agreement between the parties thereto, or that the covenants as to-dredging and repairs were unintentionally and inadvertently omitted therefrom, or that said instrument did not-correctly express the agreement of the parties thereto, and found as matter of fact said leases were duly executed;, therefore, unless it can be shown with reasonable clearness that these findings were erroneous, the judgment cannot be disturbed.

The talks which the defendants had with the dock commissioners have no relevancy to this controversy because-the dock commissioners could make no private arrangement with the defendants as to what they would or would, not do with the piers.

The leases were to be sold at public auction, terms of sale were to be and were announced by the auctioneers, and if any binding representations were made, they were contained in the terms of sale.

The terms of sale provide that the usual form of lease-was to be executed, they then said that dredging to the-depth of ten feet was to be done by the department, but that the premises were to be taken in the condition they were' in on the first of May next after the sale, the date-when the term of the lease was to commence.

From these terms it is clear that it was not intended that there should be any dispute as to the fulfillment of the dredging condition after the lessee went into possession on May first. If the lessee went into possession then, although the dredging had not been done contemplated by the terms of sale; such taking possession was a waiver of that condition as the premises were to be taken in the-condition that they were in on May first.

In the case at bar no lease being executed, the failure to-dredge might well have been a good reason for refusal to take possession on May first, and subsequently to execute the lease, but the lessees having taken possession cannot-now defend upon the ground that the dredging has not been done, having gone into and remained in possession during their whole term.

But there is additional evidence of waiver which is conclusive upon the defendants in this case.

Subsequent to May first, and while in possession of these piers the defendants executed a lease to these plaintiffs which contains no covenants whatever.

It is a well-settled rule of law that where parties enter into a written agreement respecting any subject, it is presumed that the whole contract between the parties is embraced therein; that all prior and contemporaneous negotiations and oral promises hr relation to the subject-matter are merged in the written agreement and the rights of the parties are defined by the terms of the agreement.

In the case of Wilson v. Deen (74 N. Y., 534), where an action was brought by a lessee against the lessor of certain premises to obtain a cancellation of a léase and relief from its obligations upon the ground that certain promises in relation to repairs and furnishing of the premises had not been complied with and where a judgment was given in favor of the plaintiff in the court below, the court of appeals say:

‘‘We think it impossible to sustain these conclusions without disregarding the established rule of law, that a written contract merges all prior and contemporaneous negotiations and oral promises in reference to the same subject, and that when the terms of a lease are in writing the rights and duties of the parties depend upon the terms or legal intendment of the lease itself, or as otherwise ex pressed, that it is conclusively presumed that the whole engagement of the parties, and the extent and manner of their undertaking are embraced in the writing.

“ This rule has been repeatedly applied to cases like the present, where the tenants have set up oral agreements or promises alleged to have been made by the landlord at the time of, or before, the execution of the lease, and as an inducement thereto. The alleged promises have, in most of the cases, been to put the premises in repair, but they have uniformly been held tq have been merged in the lease ” Cleves v. Willoughby, 7 Will. 83; Speckels v Sax, 1 E D. Smith, 253; Hartford Steamboat Co v The Mayor, 78 N Y., 1; Rilley v. City of Brooklyn 46 id 444

In Hartford Steamboat Co. v The Mayor (supra), the controversy arose upon a lease precisely the same in form as that in the case at bar.

The court there say:

‘ ‘ The allegations that the plaintiff entered into the said, agreement upon the representation that substantial repairs would be made by the,defendant upon the pier, etc., adds no strength to the plaintiff’s case. Such representations could not vary or add to the terms of the written agreement, but were merged in it. The case must depend upon the construction of the written instrument.”

There is no evidence whatever to support the claim that the clause in respect to the plaintiff’s dredging was unintentionally or inadvertently omitted from the lease.

The usual form of lease was to be and was given, and such usual form contains no. such clause, and in none of the evidence does any witness swear that any such provision was to be inserted in the lease, and even if there was enough evidence to support such a finding, if made, there is ample evidence to sustain the refusal made by the learned court.

The claim is now made, which does not seem to have been advanced upon the trial of this cause, that this agreement may be enforced as an independent agreement, and certain English cases are cited to support the proposition.

It is doubtful whether under the pleadings or" the requests to find, such a question can be raised, there being-no appropriate allegations in the answer or claims made in the requests to find.

The defendants evidently proceeded at the trial upon the ground of reformation, and not upon an independent agreement. But whether this be so or not, by the terms of sale the lessees agreed to take the premises as they were on May first, and by going into possession on May first, and subsequently taking a lease, they waived the agreement to dredge, if such an agreement existed.

In the case of Hartford Steamboat Company v. Mayor (supra) it was distinctly held that promises to make repairs were merged in the written contract, and such contract must govern.

. The judgment appealed from must be affirmed, with costs.

Daniels and Brady, JJ. concur.


source: Caselaw Access Project

author: Daniels, J. Van Brunt, P. J. (dissenting). Brady, J. (concurring with Daniels, J.).

license: Public Domain

text:
    H. Shugio, App’lt, v. Julia A. Hunting, Resp’t.

      (Supreme Court. General Term, First Department,

      Filed May 13, 1887.)

    1. Landlord and tenant — Defective premises—Liability oe the. LANDLORD
    Where the landlord has knowledge of certain defects in the leased, premises, and fails to íepair the same before giving possession to the tenant, the landlord will be liable for the damages sustained by the tenant by reason of the defect,
    3, Same—Negligence oe tenant—Evidence oe
    Where the tenant has suffered damages arising from a cause which it was in his power to anticipate, it is proper evidence for ihe tenant, in order to rebut the charge of contributory negligence, to show that he-adopted the means as shown him by the landlord. Van Brunt, P J dissenting

      Appeal from a judgment recovered on the dismissal of the complaint at the circuit.

      Michael H. Cardozo,, for app’It; James L. Bishop, for resp’t.
   Daniels, J.

The plaintiff was engaged in the business of Japanese wares, fans, screens, scrolls, etc., in the building known as 456 Broadway. In the morning of the 22d of July, 1885, his premises had been flooded with water and his goods thereby damaged and injured. This water apparently proceeded from the second floor, which was over the store. In that apartment a pump was found very much out of repair, from which the water had probably flowed into the room and through the ceiling into the plaintiff’s store. The evidence tended to prove the fact to be that the core of the screw securing the stop-cock was entirely out of order and worn out, and that in consequence of its defective condition the water had escaped and produced this injury.

Before its occurrence the defendant’s agent had employed- a person to make repairs to it, but they were not such as to prevent the discharge of the water. The plaintiff was the owner of the property and leased the second floor to a tenant in the early part of July, 1885, and it was highly probable that the pump was in this defective condition at and before the time when such leasing took place. It was apparently the effect of the wear, and the facts were such that the jury could very well have found that the defendant and her managing agent knew of the condition of the pump before the lease to the witness Israel. And if she did, then under the authorities her failure to repair or secure it so that it would surely hold the water was a fact upon which the plaintiff had the right to claim that she should be held hable for the loss and injury sustained in this manner by the wetting of his goods. Stapenhorst v. Amercan Manf. Co., 15 Abb. [N. S.], 355; Swords v. Edgar, 59 N. Y., 28; Clancy v. Byrne, 56 id., 129. And the principle was as far as this sustained in Edwards v. N. Y. and Harlem R. R. Co. (98 N. Y., 245, 249).

It appeared that the water could be shut off in the basement, and that the plaintiff had the ability of protecting himself from the risk of an overflow in that manner.

And he attempted to do that on the evening preceding this occurrence, but did not use the appropriate apparatus for that purpose. And on account of that failure the court considered him to be chargeable with contributory negligence, and therefore unentitled to maintain the action. But in answer to this, when the intimation was made by the court, he proposed to prove that he had been instructed by the plaintiff’s agent how to turn off the water and turned it off every night at that place. This proof was rejected, and the court thereupon dismissed the complaint.

If this evidence had been given the case would have been in a condition to submit to the jury. And as the objection to its admission was first presented upon the closing of the defendant’s proofs, it should not have been rejected, as it was, by the court.

To sustain the dismissal of the complaint it has been further urged that there was no evidence on the trial that the water passed into the store from this upper apartment, but the fact that it did so seems to have been, as it well might be, assumed in the examination of the witnesses. But if it was not, the objection should have been taken upon the trial, when it could have been removed by testimony directed to that particular subject. It was not so taken, and it cannot be urged for the first time upon an appeal to sustain the dismissal, but the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Van Brunt, P. J. (dissenting).

I am of the opinion that the judgment in this case should be affirmed upon the ground that there is no evidence showing that the water which damaged the plaintiff’s goods came from the pump claimed to be defective.

Brady, J. (concurring with Daniels, J.).

I think the evidence as to the agent’s instructions should have been received.


text:
    In the Matter of Denton F. Connor.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    Devises, to cobpobations—Chap. 641, Laws 1881; chap. 819, Laws 1848.
    There was no intention on the part of the legislature by the act of 1881, to interfere with section 6, chapter 319, Laws 1848. The provisions of the act of 1881 do not repeal section 6, they simply amend section 2 of the act of 1848. The reference to the act of 1860 in the act of 1881 was simply a declaration that the act of 1860 applied to corporations’ formed under the act of 1848, and that the act of 1881, increasing the corporations power to take and hold, should not be deemed in any way to have repealed the act of 1860.
    Appeal from a decree of the surrogate of the county of New York.
    Denton F. Connor, on the 18th of January, 1886, made a will, and died on the 23d of January following: On the 23d ■of July, 1886, the said will was admitted to probate _ by the surrogate of the county of New York. By the said will, the said Denton F. Connor bequeathed to his executor all his estate, real and personal, in trust to take possession of all said real estate, and sell and dispose of the same, and out of the proceeds to pay all just debts and funeral expenses, and to pay all the rest, residue and remainder thereof to the Home for Incurables, a corporation created in the year 1866, under chapter 319 of the Laws of 1848, entitled “An act for the incorporation of benevolent, charitable, scientific and missionary societies.” Some question having arisen as to the validity of this bequest, a con.struction of the will by the surrogate was asked for, and it was adjudicated by him that under said will the real estate of the testator was converted into personalty, and the gift to the Home for Incurables was void, the will not having been made two months before the testator’s death, required by section 6, of chapter 319 of Laws of 1848, and that the next of kin of the testator were entitled to the personal property left by him, after paying all debts and expenses, and the real estate left by him, or the proceeds thereof, •should go and belong to the person or persons who would have been entitled to such property if the conversion thereof had not been directed by said will. From this adjudication this appeal is taken by the Home for Incurables.

      James S. Steams, for the Home for Incurables, App’lts; W. H. Hamilton, guardian ad litem for certain infants, next of kin, and O. W. Pleasants, for certain other next of kin, resp’ts.
   Van Brunt, P. J.

That by the will the real estate was to be deemed converted into personal estate at the death of the testator, does not seem to admit of argument. The direction is explicit to the executors to convert into personal property, and the bequest to the Home for Incurables is of personal property, and as such the Home for Incurables must take it, and as such can only claim it. The conversion took place at the death of the testator, irrespective of any action on the part of the executors.

As has been said, the corporation, the House for Incurables, was incorporated under chapter 319 of the Laws of 1848. In 1878, by chapter 37, the Home for Incurables was authorized to take and hold real estate to the amount of $250,000. By chapter 641 of the Laws of 1881 it is provided that “All corporations already formed, or which hereafter may be formed, under and in pursuance of chapter 319 of the Laws of 1848, and the several acts amendatory thereof * * * shall, in law, be capable of taking, receiving, purchasing and holding real estate, for the purpose -of their corporation, to an amount not exceeding the sum of $200,000 dollars in value, and personal estate, for like-purposes, to an amount not exceeding the sum of $200,000 in value; but the clear annual income of such real and personal estate shall not exceed the sum of $50,000, subject, however, to the restrictions upon devises and bequests contained in an act, entitled ‘An act relating to wills, passed April 13, I860.’ ”

It is claimed upon the part of the appellants that this law of 1881 repealed all restrictions upon devises to charitable corporations theretofore existing, except those contained in the act of 1860; and, in the discussion of this question it seems to have been assumed by the counsel for both parties that this law of 1881 in some manner superseded or was amendatory of section 6 of chapter 319 of the Laws of 1848. An examination of that chapter and of the Law of 1881 will show that the Law of 1881 was not intended to be an amendment, of and that it had no relation to section 6 of chapter 319 of the Laws of 1848. The section reads as follows:

“ Any corporation formed under this act shall be capable of taking, holding or receiving any property, real or personal, by virtue of any devise or bequest contained in any last will or testament of any person' whomsoever, the clear annual income of which devise or bequest shall not exceed the sum of $10,000; provided, no person leaving a wife or child, or parent, shall devise or bequeath to such institution or corporation more than one-fourth of his or her estate, after the payment of his or her debts, and such devise or bequest shall be valid to the extent of such one-fourth, and no sudi devise or bequest shall be valid in any will which shall not have been made and executed at least two months before the death of the testator.”

It is to be observed that the limitations in this section as to the corporation receiving and holding property depend upon the manner in which the title is to be acquired. The provision is that the corporation shall not by virtue of any devise or bequest contained in any will be capable of taking any property where the clear annual income of the devise or bequest shall exceed the sum of $10,000. There is no limitation here upon the corporation taking property to any extent by gift. The only limitation is upon receiving or taking property by devise or bequest, and has no relation to the power of the corporation to take and receive, purchase and hold real estate for the purposes of its incorporation received otherwise than by devise or bequest. Therefore, if there was nothing else in the act of 1848, it would not appear that the provisions of the act of 1881 have any relation whatever to those of the act of 1848. But when, we come to see the provisions of section 2 of the latter act,. it is very apparent that the act of 1881 has relation to the provisions of section 2 of the act of 1848, and to no other part of that act. Section 2 provides that “upon filing the certificate provided in section 1, the persons who shall sign and acknowledge such certificate, and their associates and successors shall thereupon, by virtue of this act, be a body politic and corporate by the name stated in such certificate, and by that name they and their successors shall and may have succession, and shall be persons in law capable of suing and being sued * * and they and their successors by their corporate name ” (and here follows language exactly similar to that contained in the act of 1881, with the exception of the amounts being different) “shall in law be capable of taking, receiving, purchasing and holding real estate for the purposes of their corporation and for any other purposes” (the words “and for any other purposes” being left out of the act of 1881) “ to an amount not exceeding the sum of $50,000,” ($200,000 being in the act of 1881) “ in value, but the clear annual income of such real and personal estate shall not exceed the sum of $10,000” ($50,000 being the amount named in the act of 1881). It is quite apparent, therefore, that the act of 1881 in no manner attempted to interfere with or amend section-6 of the act of 1848. It was simply an enlargement of the powers of the corporation as limited by section 2 of the act of 1848, and nothing more. As has already been stated, section 6 related to the power of the corporation to take by devise. Section 2 related to the power of the corporation to hold property, no matter how acquired, and the laws of 1881 related precisely to the same subject.

It is now necessary to consider whether the addition of the words in the act of 1881, “subject however to the restrictions upon devises and bequests contained in the act entitled an act relating to wills, passed April 13, 1860,” has made any change in the law as it existed at the time of the passage of the act of 1881. It has been held that by the passage of the act relating to wills, passed April 13, 1860, the legislature increased the limit of charitable bequests from one-quarter to one-half, where the testator left a husband, wife, child or parent, but that the restriction contained in the last part of section 6, that no devise to a charitable corporation shall be valid in any will which shall not have been made and executed at least two months before the death of the testator, was not affected by the act of 1860. In construing legislative enactments, the intention of the legislature must govern, and repeals by implication are not to be favored. It is not necessary to cite authorities to sustain this proposition. And unless the provisions of the act of 1881 are inconsistent with the provisions of section 6 of the act of 1848, as there is a plain intention on the part of the legislature to repeal the provisions of the act of 1848, such provisions still exist and are binding. The main argument upon the part of the appellant seems to have been based upon the fact that there was a declared intention upon the part of the legislature by the act of 1881 to alter, charge, amend or repeal section 6 of the act of 1848; and the whole strength of his argument depends upon the existence of this fact. It has been seen by a comparison of the act of 1881 and the act of 1848 that there was no intention on the part of the legislature by the act of 1881 to interfere with that part of section 6 which it is argued was affected by the provisions of the act of 1881. The provisions of the act of 1881 no more repeal section 6 of the act of 1848 than does section 2 of that act; and as the provisions of the act of 1881 have been shown to be simply an amendment of section 2 of the act of 1848, there is no greater inconsistency between the existence of these sections as amended than existed when they were originally enacted. There would seem therefore to have been no intention upon the part of the legislature by the act of 1881 to interfere with the provisions of section 6 of the act of 1848.

It is true that the act of 1860 enlarged some of the provisions of section 6 of the act of 1848, but the balance of the section remained in full force and effect, including the two months’ limitation. Lefevre v. Lefevre, 59 N. Y., 434; Stephenson v. Short, 92 id., 433.

The reference to the act of 1860 in the act of 1881, was simply a declaration that the act of 1860 applied to corporations formed under the act of 1848, and that the act of 1881 increasing the corporations power to take and hold should not be deemed in any way to have repealed the act of 1860, limiting in certain cases the amount of devises or bequests and it does not seem to have been inserted for any other purposes.

As the act of 1881 does not repeal the provisions of the said section 6 by direct enactment, it is difficult to see how a repeal by implication is to be sustained, when such repeal runs counter to the whole policy of the law in reference to devises to corporations and said section 6 is in no way inconsistent with any of the provisions of the act of 1881 does not seem necessary to discuss this question further, as the whole foundation of the argument of the repeal by implication seems to rest upon the assumption that the law of 1881 showed an intent on the part of the legislature to change the provisions of section 6 in some respects at least, whereas it has been shown that it had no application whatever to that section, but was intended to amend section 2.

Adopting this view full effect is given to all the legislative enactments, and an intent to legislate upon a subject which is not at all germain to the matters legislated upon by the act of 1881, is not extorted from a very simple provision amending section 2 of the act of 1848.

The decree of the learned surrogate must therefore be affirmed, with costs.

Daniels and Brady, JJ., concur.


author: Brady, J.

text:
    Warren Chemical and Manufacturing Co. App’lt, v. Giles J. Holbrook, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    1. Statute of frauds—Parol contract—When sufficent.
    Where the sale is not one of chattels already in existence and capable of delivery, but such as are to be manufactured and delivered as the requirements may be, this is not a contract within the statute of frauds.
    2. Same—Performance within a year—When unnecessary.
    The statute only includes such agreements which per se, by the terms are not to be performed in a year and not those which may be performed within that period. If the agreement may consistently be entirely performed within a year, although it máy not be probable, displaced beyond the condemnation of the statute.
    Appeal from a judgment on verdict.

      William W. Niles, for app’lt; William Talcot, for resp’t.
   Brady, J.

The defendant admitted the claim asserted by plaintiffs, which was for goods sold and delivered, and set up counter-claims, of which was allowed and a verdict given for the balance due thereon after making proper deductions. The defendant claimed to have, by arrangement with the plaintiffs, the exclusive right, within a certain and therefore specified territory, to use their patented article for roofing, and which the plaintiffs were to furnish him as it was needed.

In the fall of 1881 the New York, West Shore and Buffalo Railway Company had in contemplation the roofing of certain structures, and the performance of which was accorded the defendant, was conceded to be within the territory assigned to him.

He made all the necessary preparations for its commencement and proceeded to the performance of his contract, the plaintiffs agreeing, through their authorized agents, to furnish the patent roofing which was to be applied, and which the defendant, by his agreement, must purchase from them.

It is not shown that it was then made and ready for delivery, but was to be supplied as requested. The transaction was one of much promise in its pecuniary results and therefore very desirable. The plaintiffs assisted the defendant to obtain the contract and by their acts in limine conceded that it was his in pursuance of the understanding already mentioned as to the exclusive use of their patented article within the designated territory. After some of the work had been done the plaintiffs intervened and, ostensibly taking exception to the manner in which it was performed, and which they alleged was improper and imperfect, took possession of the locus in quo and finished it. They sought to show that the defendant was not entitled to the exclusive use of the roofing within any territory; that if he were it depended upon conditions with which he had not complied, and particularly that he had not applied it as he should have done, a very important necessity not only for the reputation of the roofing and its general use, but for the reason that they were requested to guarantee it for a term of years and would be obliged to supply any defects which might appear during the period named.

They essayed to prove, by the results of the work done by the defendant as well as the work in hand, his unskillfullness and failure, and he responded by efforts to show that these results, if they existed, arose from the imperfection of their roofing, and thus that contention was open for consideration.

They also asserted that, even though he was appointed an agent for the purpose of securing the exclusive use of their roofing by dint of energy and perseverance to that end, he had done little or nothing to accomplish that object, and consequently was at their mercy and could be discharged at any time, but this attitude was enfeebled by the fact that they gave him the longest of their contracts, which was then under consideration by the court, and during the performance of which by him they had deposed him.

The testimony is voluminous, involving many details in several phases, but it is distinguished by the fact that the chief witness for the plaintiffs, Mr. Warren, in many respects corroborates the statements of the defendant as to his relations with the plaintiffs.

And further by the proof that the underlying reason for the intervention of the company was that they wanted all the profits which would arise from the performance of the contract, all other reasons assigned for such interference being pretenses only. This was the subject of conflicting evidence, but the examination of the testimony on the part of the defendant, shows that while he asserts positively admissions, agreements, statements and occurrences of import, the response is most frequently by the person named, that he does not remember or does not recollect the statement admission, agreement or occurrence asserted to have been made or to have taken place

These diverse and various elements were discussed and descanted upon by the learned judge presiding, who stated that notwithstanding the abundance, the wealth of evidence given, the issues were simple, and he was right. It is sometimes, if not frequently noticed, on the examination we are obliged to make, that too much reliance seems to be placed upon details especially of cross-examination, and which are evidently designed more to develop a theory than to weaken the affirmative declarations and consequently there is often a mass of testimony of no practical importance

Here there was a lengthy dispute as to whether the defendant was the agent of the plaintiffs, gifted with the right to the exclusive use of the plaintiffs’ roofing material within the territory named, but the proof of the affirmative of this was not an indispensible element for the success of the defendant’s claim inasmuch as he was given the contract, and was entitled to damages if improperly deprived of its benefits whether an agent or not. And this was the view entertained by the learned justice presiding in the court below. The terms were stated and therefore known to the plaintiffs, and they were advised of the probable profits also. There was no secrecy practiced by the defendant.

The plaintiffs were in combination knowing what they were to receive for their roofiing material and what the West Shore Company was to pay for the work to be done. Indeed as already suggested they were instrumental in securing the contract for the roofing and consequently in all respects identified with it. Upon the merits, therefore, of this controversy they had abundant opportunity to be heard and presented their proofs fully in regard to the various features of it, were unsuccessful in convincing the jury that they were free from liability. The plaintiffs also objected to the defendants’ counterclaim on the ground that the contract made with them was void by the Statute of Frauds for the reasons that it rested in parol and involved a sale of property exceeding fifty dollars in amount, and was not to be performed within a year. There are several .answers to this defense.

The admission of the plaintiff’s claim by the defendant is coupled with the statement that it was for roofing material sold to him, under and in accordance with the understanding as to his exclusive use already mentioned, and there is no doubt that such is the fact, now that the ]ury have found m his favor.

The defendant’s counter-claim therefore springs from the transactions which form, in part at least, the plaintiff’s; claim, and are thus asserted to have been valid, and were urged as binding obligations. But there is a further answer. The sale was not of chattels already in existence and capable of delivery. They were to be manufactured by the plaintiff and delivered as might be required; this was not a contract within the statute of frauds. Crookshank v. Burrell, 18 Johns., 58; Downs v. Ross, 23 Wend., 270; Smith v. New York Central, 4 Keyes, 180.

In reference to the other branch of the statute, namely, that the contract is one which by its terms is not to be performed in a year, it must be said that the statute only includes such agreements per se, and not those which may be performed within that period. If the agreement may consistently be entirely performed within a year, although it may not be probable, it is placed beyond the condemnation of the statute. Kent v. Kent, 62 N. Y., 560 ; Van Woert v. A. L. R R. Co., 67 id., 538; Legrand v. Manhattan Association, 80 id., 638; see also Roberts v. Rockbottom Co , 7 Metc., 46, and Hodges v. Richmond, 9 R. I., 482 It. must also be said that an oral agreement in part performed is not within the provisions of the statute. See Van Woert v. A. S. R. Co. supra; McKnight v. Dunlop, 5 N Y , 537; Thomson v. Menck, 2 Keyes, 82. It was said by Danforth, J., in Smart v. Smart (97 N. Y., 559), that it would be a perversion of the true purposes of the statute to give it such a construction as would protect the defendant, in the enjoyment of advantages obtained from the plaintiffs in reliance, upon an oral agreement on which the latter acted.

The proper measure of damages was obtained upon the-trial. The respondent was entitled to the profit which he would have derived from his contract with the West Shore- and Buffalo Railroad Company. This was allowed to him, and justly so. The plaintiffs knew of it, and it would seem, as already suggested, sought to secure it to themselves. The respondent’s right to this measure of compensation is settled law. 101 N. Y., 265.

All the salient questions herein have thus been considered,, and although the appellant’s counsel has labored with great zeal and fidelity, not only upon the-trial but upon the argument of this appeal, he has not been able to overcome the array of facts and circumstances marshalled against him, and the rules of law which they coerce to the discomfiture of his client.

Judgment affirmed, with costs.

Daniels, J., concurs.


author: Daniels, J.

text:
    Peter Adams Company, App’lt, v. The National Shoe and Leather Bank, Theodore Conrow and others, Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887).

    1. Banks and banking—Notice to bank of claim on deposit—Effect' OF PAYMENT—RIGHTS OF THIRD PARTIES.
    Where one has obtained money fraudulently and deposited the same on his own account, the bank will become liable to the rightful owner if it pays the balance or any part thereof to the depositor after having received notice of the claim. The notice will be sufficient, though informal, if it in fact put the bank upon its guard. The third parties receiving such money in good faith upon a precedent indebtedness will be protected, but if the money has been received after notice has been given of the; claim, they with the bank will be equally liable.
    2. Same—Election as to party to be held liable.
    In such a case it is error to compel the plaintiff to elect which one shall be held liable. A recovery against one releases the other from liability.
    3. Same—Running Account.
    In the case of an account with a bank, the legal presumption is that checks or drafts previously made are first paid out of the preceding deposits; the checks are paid in the order in which they are drawn, out of the earlier instead of the later deposits of money.
    Appeal from a judgment recovered on trial before the special term.

      Henry H. Bowman, for app’lt; George C. Lay, for The Shoe and Leather Bank; Henry Parsons, for def’t, Conrow.
   Daniels, J.

The plaintiff delivered its check drawn on the 29th of October, 1884, for the sum of $4,500, to A. C. Branscom, representing himself to be the manager of the publishing department of the New Orleans Exposition. This check was drawn upon the Nassau Bank and was received by Branscom upon a note of $5,500, dated on the 19th of August, 1884. This note was made in the name of the Mississippi Mills, and had the same of William M. Oliver, “secretary” and “treasurer,” subscribed to it. The plaintiff was a manufacturer and dealer in paper, a large quantity of which was contracted for, and to be delivered to Branscom. The difference of $1,000 between the amount of the note and the check was to be retained by the plaintiff as security for the fulfillment of his agreement. The check was deposited on the day of its date with the National Shoe and Leather Bank, and by the account it appears to have been the last deposit made by Branscom with the bank. His account was afterwards reduced by checks drawn against it to the sum of about $2,915.

On the 8th of November he drew a check for that amount in favor of the defendants Conrow Brothers, for which they received this sum of money. Another check was drawn by him for the sum of $16 11, which practically closed his account with the bank. It was to recover chis sum of money paid upon the check given by Branscom to Conrow Brothers that this action was instituted. It proceeded upon the affirmation that the plaintiff had been induced to make and deliver its check to Branscom not only by means of false and fraudulent representations but upon the note made in the name of the Mississippi Mills and indorsed with the name of the president of the exposition, which in fact was a forgery. When this state of facts, which was abundantly maintained by the evidence, came to the knowledge of the plaintiff, it served a notice on Branscom, dated on the 6th of November, 1881, disaffirming and rescinding the agreements with him, and requiring a return from him of $4,500 loaned and advanced by the plaintiff’s check of the 29th of October. Notice was also given to the bank itself by the plaintiff claiming the money on deposit as the money of the plaintiff. This notice was objected to upon the trial as insufficient, for the reason that it only claimed that “a certain sum of money lately deposited with you by Alexander 0. Branscom, as manager or otherwise, and which sum, or some part thereof, remains on deposit with you to the credit of said Branscom, is the property of the .undersigned, Peter Adams Com-j)any.”

The notice' then proceeded to state that the money had been obtained by fraud by Branscom, and notified the bank not to pay it to him, or to his order, or to any other person, but to pay or hold it subject to the order of the plaintiff.

The notice was incomplete, for it did not trace the money to the check which had been delivered" by the plaintiff to Branscom on the Nassau Bank. But its deficiency in this •respect did not operate to the prejudice of the plaintiff, for it appeared by the conversation which, on the 6th of November, took place between the plaintiff’s counsel, Henry H. Branscom, and Mr. Crane, the president of the bank, that it was understood by him that the notice did not refer to this money still standing to the credit of Branscom in his account and which had m fact been obtained from the Nassau Bank on the check by this defendant.

This conversation was induced by a letter written by the president, dated the same day, stating that they had no funds under their control which were deposited by Alexander C. Branscom, as manager or otherwise.

The president of the bank, in the interview between himself and Mr. Branscom, explained this statement as having proceeded upon the circumstance that an attachment had been issued in favor of the Conrows against Branscom, under which the money; owing to him by the bank had been attached, and the interview which then took place proceeded throughout upon the practical concession that the president of the bank understood the written notice to refer to the plaintiff’s check and its proceeds, which had been collected by it and placed to the credit of Branscom.

It further appeared that the attachment proceedings were discontinued on the 8th of November before the check in favor of Conrow Brothers for this sum of money had been paid over to them by the bank, and that the payment was followed by a consultation with counsel, who advised that such payment might safely be made. From this evidence the fact very clearly appears that the president did understand that the written notice, as well as that contained in the verbal conversation, was intended to relate to the money paid out on this check, and that it was so paid to Conrow Brothers, in disregard of the notice which had been given informing the bank of the rights of the plaintiff, and having made the payment in that manner the bank cannot legally claim to be shielded from the consequences of its unauthorized act.

The cases of Ætna Bank v. Fourth National Bank (46 N. Y., 82), and Justh v. National Bank of Com., (56 N. Y., 478), do not protect the bank in making this payment of the money. In the first of these cases no question bearing any relation to this disposition of the money arose. It is no more than a decision concerning the effect of certifying a check, while in the latter case the money was paid out in good faith, which protected the bank on account of that circumstance, not appearing in this case.

Neither did the attachment proceeding afford the bank any legal reason for paying out this money after it had been advised of the claim or right of the plaintiff. For as that was issued against Branscom alone, no more could be seized under it than his right or interest in the money in controversy, and that was subordinate to the legal right of the plaintiff to reclaim it upon the discovery of the fraud and forgery, and the election to rescind their agreement with Branscom. But it was not pretended, and could not have been, that the attachment afforded any protection to the bank, for it had in fact been withdrawn, as well as the levy under it and the money was paid over in compliance with the check of Branscom, who had in this manner fraudulently received the plaintiff’s check, and that in this state of the facts it had the right to disaffirm its transactions with Branscom and follow the money and reclaim it, so far as its identity could be traced, has been reasonably well settled by the cases of Newton v. Porter, 69 N. Y., 133, and Dows v. Kidder, 84 id., 121.

That this was the identical money produced by the-plaintiff’s check is established by the fact that it was the last deposit in Branscom’s account, and this balance of it-remained unpaid to him. The checks or drafts, previously made by him upon his account were as a matter of legal presumption, first paid out of the preceding deposits, and the residue only not so paid, were then paid from so much of the last deposit as became necessary to meet their amounts.

This presumption applies where no intervening circumstance is made to appear justifying its exclusion, and there-is no such circumstance in this case, for the account was-kept generally as á debtor and creditor account in favor of Branscom, placing to his credit his deposits, and charging against them the checks drawn by him in the order in which they were so drawn. And when that is the case the-presumption already mentioned applies—that the checks, are paid in the order in which they are drawn, out of the-earlier, instead of the later deposits of money. Pennell v. Deffell, 4 De Gex, M. & G., 372, 384, following the rule in Clayton’s case, 1 Merrivale, 572, 608, and this has been further sanctioned by the case of Knachbull v. Hallett, Law Rep., 13, Ch. Div., 696, and Dowes v. Kidder (supra) may not improperly be said to support the application of the-same principle.

The bank, however," may still escape liability if the fund parted with in this manner shall be recovered from the other defendants. For the object of the action is to follow and recover the fund as the equitable property of the plaintiff. The defendants Oonrow received it in a manner charging them with notice of the plaintiff’s right to the money. If that had not been the fact, then under the authority of Stephens v. Board of Education (79 N. Y., 183), the plaintiff would have no remedy over against them, for-receiving such money in good faith upon a precedent indebtedness will entitle the party receiving it to hold it. But before it was in this manner received, notice was given to Henry Parsons, who was the attorney and counsel for the Conrows, that the plaintiff claimed to be entitled to this-money, as the proceeds of the check obtained from them in the manner already stated. Before this conversation took place they had employed Parsons to prosecute their demand against Branscom, and he had issued an attachment-under which the seizure of the deposit was made. For that attachment was issued on the 3d of November, and on the fifth of the same month Mr. Bowman testified that he-stated to Parsons that the money in the bank was the-plaintiff’s money, obtained through fraud, and claimed that neither Mr. Oonrow nor Branscom, nor any one else, had. title to it. After this conversation, as well as the preceding •conversation between Bowman and one of the defendants, it cannot very well be assumed to be the fact that these defendants received the money in good faith. The evidence is adverse to that presumption, leading directly to the conclusion that when they received it on the 8th of November it was subject to this notice given to their attorney and counsel, that it was the money of the plaintiff and not of Branscom, and that the notice is entitled to have that weight and effect in the case, seems to be sustained by what was held in Village of Port Jervis v. First National Bank, 96 N. Y., 550, 558, 559.

At the close of the proof an application was made by the counsel for the Oonrow Brothers for a direction that the plaintiff should elect which of the defendants it would claim to hold.

This was objected to by the plaintiff, but the court nevertheless required the election to be made, and to that ruling the plaintiff excepted, and under it the election was made to proceed against the bank, and the complaint was dismissed as to the Oonrow Brothers. There was no foundation for such an application. The case proceeded upon a single cause of action and that was the alleged right of the plaintiff to follow and recover this money from the possession of the party to which it could be traced, and to entitle it to recover m this action, it was necessary that these different defendants should be brought before the court, and the plaintiff had the right to present its case, with all of them present in the action, and to be secured such relief against either or both as under the circumstances it might be legally entitled to demand. If that relief could not be obtained from the Oonrow Brothers, it probably might be against the bank, for paying over this money to them after receiving information of the plaintiff’s right to it.

It had the right, also, to claim that these defendants were primarily hable to it, and the bank hable only in case satisfaction could not be obtained from them, and for the complete and effectual disposition of the controversy these persons were all necessary parties to the action.

The case was erroneously disposed of, and the judgment should be reversed and a new trial ordered, with costs to abide the event.

Van Brunt, P. J., and Brady, J., concur.


text:
    John L. Douglass, App’lt, v. The Merchants’ Insurance Company of New York, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    Corporations—Employment oe officers—Regulations by the by-laws.
    If a yearly contract is to be inferred from the circumstances of the employment, such employment can only terminate at the expiration of the year. But where the by-laws provided that the duration of office may be-terminated as by these laws provided, and special provision is made therefor, and these by-laws were in existence at the beginning of the term of office of the plaintiff, no recovery can be had, if his dismissal was in accordance with the laws of the corporation of which he was or should, have been cognizant.
    Appeal from a judgment dismissing the plaintiff’s complaint at the trial.
    • William W. Badger, for app’lt; Francis Lynde Stetson,. for resp’t.
   Daniels, J.

The plaintiff was, by the action of its board of directors, dismissed, in February, 1885, from his position or office of secretary of the defendant. He had been in that employment in that capacity from the 31st of December, 1857, at yearly salaries, payable monthly or quarterly, but varying in amounts. There was no contract by which the defendant agreed to continue him in its service for any specified period of time, other than what might possibly be inferred from the fact that he was in its employment under yearly salaries, and if a yearly contract should be inferred from that circumstance, such employment could only be terminated at the expiration of the year, were it not for the fact that the by-laws of the corporation in this case provided otherwise. Vail v. Jersey Little Falls Co., 32 Barb., 564; Kirk v. Hartman, 63 Penn., 97, 105-6. But it was-declared and provided in the by-laws of the company that “the president, vice-president, secretary, surveyor and clerks, shall respectively hold their offices during the pleasure of the board of directors, and until the appointment of a successor, either permanent or pro tern, and no officer or clerk shall be removed without a concurrence of a majority of the whole board of directors. The president may suspend, for cause, any officer or clerk until the board shall be convened.”

And the existence of this by-law seems to have been known to the plaintiff while he continued in the defendant’s employment. It was contained in a book in part authenticated by his name as the secretary "of the company. Upon this subject he was asked:

Q. “Is it a copy of the by-laws at that time ?”

A. “I presume it to be; I have no original to compare it-

with. The original must be in the book of minutes, and could be compared and ascertained definitely.”

Q. “Have you any doubt that those are the by-laws of the company as issued in 1850 ? ”

A. “I have no doubt, but I cannot say positively, because I have not compared it with the original.”

Q. “What is that book I show you (showing another book to witness) ? ”

A. “ That is also a copy of the charter and by-laws of the company, and that was made in 1881.”

Q. That was issued while- yon were secretary, wasn’t it?”

A. “Yes, I presume it to be a copy of the same.”

Q. “ Doesn’t your name appear as secretary on the page ?” A. “Yes, sir.”

Q. “You issued such copies as that, did you not, while vou were secretary ? ”

A. “I think that it was done under the direction of a committee—I don’t think I did it.”

Q. “But you were secretary at that time and cognizant of it?”

A. “Yes, I was secretary.”

Q. “Have you any doubt that those were the by-laws at that time ? ”

A. “No.”

While the witness did not expressly in this examination admit his knowledge of the existence of the by-law, it is a plain inference from it that he understood and knew that this was one of the by-laws of the company regulating the tenure of his own employment, as well as that of the other persons and officers mentioned in it. If he had not understood that to be the fact, the least that could have been expected of him under the circumstances was that he should have denied the possession of such knowledge, and that he failed to do. The court was accordingly sustained in the inference that the plaintiff’s employment was qualified by the language of this by-law, and that it authorized the company at any time to dispense with his services, as it did by a resolution afterwards adopted by the board of directors. The case is in principle not entirely dissimilar to Smith v. Buffalo Street Railway Co., 35 Hun, 204. And his dismissal from the service of the company, was for these reasons a breach of no contract authorizing him to maintain an action for damages. In the course of bis testimony he stated that he had performed services under the direction of the president of the company after his discharge, but the amount of the services or their value, was not described or given in the evidence. Neither was any claim made in the complaint for these services, as a ground

of action. As to this part of the case, it was left in so indefinite a condition that it presented no question for the decision of the jury. . The dismissal of the complaint was justified, and the judgment should be affirmed

Van Brunt, P. J., and Brady, J., concur


author: Per Curiam.

text:
    Henry R. Pierson, as Receiver, etc., App’lt, v. Andrew W Morgan, Resp’t.

      Supreme Court, General Term, First Department,

      Filed May 13 1887)
    Practice—Bevivinq action—Death of defendant—Who mat mote— Code Civil Pro., § 757.
    Under section. 757 of the Code of Civil Procedure, the representatives of a deceased defendant have the privilege of having an action revived, so that it may proceed to judgment. This right is not wholly vested in the plaintiff. The representatives of the deceased defendant may properly move for a revivor. Limrmm'e v. Bainbridge, 49 N. Y., 125, explained and followed
    Appeal from an order directing the plaintiff to cause the action to be revived, or in default thereof that the administratrix of the deceased defendant be substituted and simultaneously the action be dismissed with costs and allowance.

      Raphael J. Moses, Jr., for app’lt; P. Harwood Vernon, for resp’t.
   Per Curiam.

The case of Livermore v. Bainbridge (49 N. Y., 125), is an express authority that under section 121 of the Code of Procedure, the personal representatives of a deceased defendant could not have an action revived, unless the deceased defendant had acquired some right by some interlocutory judgment therein or had become an actor in the proceeding by the presentation of a counterclaim, and this conclusion was based upon the wording of this section which permitted the revivor within one year to be upon motion, or afterwards upon supplemental complaint. It was deemed by the court that the reference to a revivor by supplemental complaint assumed that the plaintiff or his representative is the moving party referred to.

In the Code of Civil Procedure, however, these words are omitted from section 757, as such section now stands, and they were probably omitted because of the construction which had been placed upon them in connection with this matter of revivor, as there would seem to be no good reason why the representatives of a deceased defendant should not have the privilege of having an action revived so that it might proceed to judgment instead of that right being vested wholly in a plaintiff.

We think that in view of the present language of the Code that the case cited is an authority in favor of the order appealed from and such a construction seems to be in evident accordance with the language of the section. The provision as to allowance does not seem to have been an improper exercise of discretion. The plaintiff may continue the litigation if he so desires, and if not, he should be required to pay the usual terms as a condition of being permitted to retire.

The order appealed from should be affirmed, with ten dollars costs and disbursements.


text:
    John Parker and another, as Executors, etc., App’lts, v. Maria Linden, Resp’t, Mark Lythgoe et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    1. Wills—Construction of—Intention of testator.
    Where in a will the testator devises his real property and also gives the executor a power of sale, whether or not there was intended to he a conversion of the realty into personalty, must be determined by ascertaining from the will what was the intention of the testator.
    .2. Dower—Conversion of realty into personalty—Eight of widow to claim her .third and dower right.
    There being no provision in lieu of dower, though the testator intended to have the realty converted into personalty, yet he could not by this means cut off his widow’s right of dower any more than he could by sale in his lifetime. And should it be held that certain of the legacies lapsed, his widow would have a right to claim her dower in the realty and her third in the personalty as to which he died intestate.
    One James Linden, residing in the city of New York, died on the 10th day of June, 1885, leaving no issue, and a last will and testament made, executed and published on the 9th day of November, 1879, which will was duly admitted to probate by the surrogate of the city and county of New York as a will of real and personal estate on the 25th of August, 1885. By this will the testator gave to one Maria Craig alias Maria Linden, respondent herein, one dollar, and authorized and empowered his executors to defend any claim which she might make against his estate, and declaring that the said Maria was no lawful wife of the testator.
    After providing for some special legacies, the fourth clause of the will reads as follows:

      Fourth. After all my just debts and the money herein-before given and bequeathed, and the work ordered to be done and the gold watch delivered, then I give and bequeath to my half-brothers, William Lego, Mark Lego, and my half-sister, Jane Lego, now 'or late of Liverpool, England, all the rest, residue and remainder of my estate, both real and personal, of what nature or kind soever, to be received by them share and share alike, or in equal parts.

      By the sixth clause of the will the testator provided as-follows:

      Sixth. I order after all my just debts and bequests are-fully paid and discharged, that my real estate be sold at-public auction, under the direction of a referee appointed by the order of the supreme court, that said referee execute to the purchaser or purchasers, a deed of the premises sold, the proceeds.of the sale after deducting his fees and expenses of sale, said referee shall deposit in the supreme court to be invested under the direction of said court, in the same manner as money belonging to non-residents according to the rules and practice of the supreme court in such cases, for the use and benefit of William, Mark and Jane Lego, as before directed, subject to the further order of the court.
    The respondent Maria Linden or Maria Craig as she is-called in the will brought an action to have her dower assigned in the real estate of James Linden, deceased, as widow, which resulted in a judgment declaring her to be the widow and assigned her dower in the real estate left by said James Linden.
    In consequence of the deaths of various of the legatees and uncertainties as to the rights of the parties under the will, the executors therein named commenced this action for the construction of the will, and the court adjudged amongst other things that the respondent Maria Linden was entitled to receive as widow of James Linden one-half' of the lapsed legacies and one-half of two-thirds of the residuary estate intended for William and Jane Lythgoe, and to $2,000 in addition thereto, the said William and Jane having died in the lifetime of the testator. From this judgment this appeal is taken.

      Henry Brewster, for pl’ffs. and app’lts; B. Vanderhoven, for Mark Lythgoe and others; E. S. Peck, for defendant Maria Linden, resp’ts.
   Van Brunt, P. J.

The question involved in this appeal is whether the testator intended to convert his real esta-te into personalty by the provisions of his will.

It is urged that'this construction cannot be placed upon the will because it is manifest that James Linden did not intend to convert the real estate into personalty for the benefit of Maria Linden. That he did not so intend is-certainly manifest by the language of the will; and that he-did not suppose that such would be the result arising from the provisions under the will that the real estate should be converted into personalty is equally apparent. But the question of the intention of the testator is not whether he intended to convert his real estate into personalty -for the benefit of Maria Linden, but whether he intended to convert his real estate into personalty. An examination of the will and a consideration of the circumstances under which the legatees were placed seem to show conclusively that such was the intention of the testator.

It is true that in the fourth clause of the will the testator makes a devise of the rest, residue and remainder of his estate, both real and personal, to his two half brothers and his half sister absolutely. But it is to be remembered that the testator knew that these half brothers and half sister, being aliens, British subjects, could not take real estate by devise.

It was this knowledge which undoubtedly caused the insertion in the will, of the sixth paragraph, whereby he directed that all his real estate should be sold at public auction, under the direction of a referee appointed by an order of the supreme court, and that the proceeds of sale should be deposited in the supreme court and invested, under the direction of said court, in the same manner as moneys belonging to non-residents. It seems to be clear that the testator intended that his estate should be converted into personalty in order that his alien brothers and sister might take. He seems to have been aware of the fact that he could not devise to them the realty, and that they could not take the realty as such. Hence, for the purpose of obviating this difficulty, he provided for a conversion of the real-estate into personalty and a deposit of the money, in court for the use and benefit of his brothers and sister. If all his brothers and sister had died, and thus the necessity for conversion of the real estate into personalty had ceased to exist, perhaps this direction would have fallen, and the real estate would have descended as realty. But, although the learned judge who tried the case at the special term has found that one brother and sister have died and their legacies have lapsed, there is still a survivor, and it is necessary that the power of sale contained in the will should be carried into effect, so that he may receive his one-third share in money, lie not being so situated that he can take the same as realty. The conversion of the estate, therefore, into personalty, as was contemplated by the testator, is absolutely-necessary to the carrying out of the provision of the will; and, therefore, there was a conversion of the real estate into personalty immediately upon the death of the testator as was intended by him, and such residue must be distributed as personalty.

It is claimed, however, that the widow cannot claim dower in the real estate and also participate in the personalty, the proceeds of the real estate under the Statute of Distributions. The answer to this proposition seems to be that the widow would have been entitled to her dower in this real estate had the testator sold it in his lifetime and left the proceeds in his will as personalty. And if the testator could not deprive the widow of her dower in the real estate by a sale before his death he could not deprive her of dower in the real estate by directing the conversion of such real estate into personalty after his death. In both cases the widow, so far as the testator died intestate as to his personal estate, would be entitled to her share of the personal estate, and she would also have been entitled to dower in the real estate out of the sale of which this personalty arose. ' '

It would appear, therefore, that the judgment of the court below was- correct and should be affirmed with cots.

Brady and Daniels, JJ., concur.


text:
    Adolph Anson, Resp’t, v. Emil Schultze, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    .. Guaranty—Contract to answer for the debt of another—Must be in writing.
    Under the statute of frauds, it is absolutely necessary that the contract guarantying the debt of another must be in writing, or else it is void.
    3. Evidence— Apparently immaterial—Object of must be stated.
    Where the evidence adduced is perfectly immaterial as to the issues involved, the purpose for which it is offered must be shown to the court, or no error will be committed in excluding it.
    8. Same—Incompetent—When motion to strike out is proper.
    Where, after the admission of evidence it is doubtful that it is competent as evidence, the proper practice is to move to have the same stricken out, rather than to object to its admission.
    Appeal from judgment entered in favor of plaintiff upon the verdict of a jury, and from order denying motion for a new trial on the minutes.

      Babe & Keller, for app’lt; MorrisS. Wise, for resp’t.
   Van Brunt, P. J.

The plaintiff in his complaint alleged that during the years 1881, 1882 and 1883, he performed work, labor and services for the defendants, and that on the 1st of January, 1884, there was an agreed balance of $750 due to the plaintiff from the defendants. This cause of action was admitted by the defendant. For a second cause of action the plaintiff alleged that during the year 1884 he was employed by the defendants at an agreed compensation, of which then there was due the sum of $950.37. And for a third cause of action, that he rendered services from the 1st of January, 1885, to the 24th of June, 1885, to the defendants, when he was discharged, and that there was due a balance for such services of $407.75.

The defendants by their answer admitted that the plaintiff rendered services during the year 1884, but denied the amount due; and also admitted the services rendered between January 1st, 1885, and June 24th, 1885, but denied the amount due. The defendants set up as a counterclaim a guaranty upon the part of the plaintiff of payment for certain goods sold to one Cunningham amounting to the the sum of $442.48, and for a further counter-claim a guaranty of another bill of goods sold to the firm of Layman & Mayhoff by the defendants, which bill of goods has never been paid. Upon the trial of the case upon cross-examination the plaintiff testified that he was discharged on the 24th of June, 1885. He was then asked: “When did you go into other employment ?” This was objected to as immaterial, the objection was sustained, and an exception taken. It is urged that it was material upon the truth of the plaintiff’s statement that he was employed upon a yearly salary, to ascertain why he did not sue for the balance of the term of his employment, and that if he had entered upon other employment within the period, that fact might have explained the nature of his claim. It is not apparent that the inquiry tended to throw any light upon this question. There is no intimation upon the record that the question was asked for any such purpose; and in view of the fact of the plaintiff’s not suing for any salary subsequent to the 24th of June, 1885, it was entirely immaterial what employment he had made of his time subsequent to that period. If it was desired to introduce such evidence for the purpose of showing that the plaintiff’s claim of yearly employment was not founded upon fact, it was necessary for the learned counsel for the. defendants to have gone further in their inquiry, or to have stated to the court the object with which the inquiry was pursued. As it appears upon the record that no intimation was given to the court as to the purpose for which the evidence was offered; and as it appears to have been perfectly immaterial to the issues involved, the ruling therefore, was not erroneous.

The other two exceptions in the case relate to the counter-claims set up in the defendant’s answer. The evidence relating to the counter-claim set up in the answer as to the goods sold to Cunningham, was stricken out upon motion; and the counter-claim in relation to the goods sold to Layman & Mayhoff, was dismissed upon-motion, at the end of the defendant’s case.

No evidence, whatever, was offered in respect to either of these counterclaims tending to show that the guaranty sued upon was in writing. This, under the Statute of Frauds, was fatal to those causes of action. A guaranty, unless in writing, is absolutely void under that statute; and the declaration in the answer is expressly upon a guaranty of the plaintiff, to be answerable to the defendants for the payment by said Ounninghan and Layman and Mayhoff of the price of said goods..

It is immaterial so far as the result is concerned whether the court upon ascertaining that this guaranty was not in writing, struck out the evidence, or dismissed the counterclaim. If it had appeared in the first instance that the guaranty was not in writing, the evidence should have been excluded; and therefore, when during the progress of the trial it was ascertained that such was the case, the plaintiff was correct in his practice in moving to strike out the evidence relating thereto. It is true that a 'different practice was pursued in reference to the second counterclaim. That counterclaim founded upon a guaranty, and it appearing that such guaranty was not in writing, the counterclaim was properly dismissed.

The learned counsel for the appellant claims that these rulings were .error, because the jury might have found from the evidence that the credit was given to the plaintiff in the first instance and that the contract was not one of guaranty, and has cited many authorities to sustain that proposition. The defendant in setting up his counterclaim having based his cause of action upon a guaranty could not recover upon the ground that there was no guaranty without an amendment of his pleadings. The foundation of his complaint being a guaranty and no guaranty in writing being proven, no right to recover was shown.

It is too late now to claim that there was sufficient evidence to show a right to recover for goods sold and delivered. Whether upon an application to the court, he would have been allowed to amend his answer, is a question not now necessary to consider. But in the absense of such amendment, it is clear that no such question could be submitted to the jury.

The judgment and order appealed from, were accordingly correct and must be affirmed, with costs.

Daniels and Brady, JJ., concur.


text:
    Dudley S. Gautier et al., Resp’ts, v. Douglas Manufacturing Company et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    COBPORATICXN—DEBTS OB—PuBBEBEITCE.
    The plaintiffs herein supplied the material for the conduct of the business in "which the defendant company were engaged. Held, that the plaintiffs were entitled to be paid for the merchandise furnished by them before the capital used in the enterprise should be applied to the payment of any debts not arising out of the business.
    Appeal from order confirming report of the referees herein and from judgment entered upon said report in favor of the plaintiffs and against the defendants, and motion for reargument of an appeal heard in this case.

      Luther li. Marsh and W. O. Wilson, for app’lts; John 23. Parsons, for resp’ts.
   Van Brunt, P. J.

It is not necessary in the disposition of the motion for reargument in this case to recite the facts, which it is admitted were correctly set forth in the opinion delivered by the general term upon the previous appeal herein. The error into which the general term are alleged to have fallen does not seem to have been very flagrant, otherwise the learned counsel for the appellants would not have taken eight years to discover the same. The appeal in respect to which the motion for argument is now made was decided in March, 1878, and the motion for reargument was made in December, 1886. It is assumed as a basis for this motion that the court in the disposition -of the previous appeal overlooked certain provisions of the trust agreement which formed the basis of their opinion. It is conceded that in the statement of facts the terms of the agreement, and of each and every part thereof, were correctly set forth, hue it is claimed in discussing the legal propositions the terms of that agreement were overlooked and an erroneous conclusion arrived at. As has been said, such conclusion cannot have been very apparently erroneous, otherwise a motion to correct the error would not have been delayed for over eight years.

An examination. of the agreement ana of the record before the court upon the previous appeal, leads necessarily to the conclusion that the result then arrived at was entirely correct. It is true that in the declaration of trust executed by Brough at or about the time of the conveyance of the property in question to him, there was a recital that the-Bussell and Erwin Company were to furnish the steel necessary for the use of the enterprise, and that there was a provision also for the payment to that company for the steel thus- furnished, and if the Bussell and Erwin Company had furnished the steel pursuant to that declaration of trust, with knowledge of its terms, they would undoubtedly have been remitted to the order of payment therein provided. But it is part and parcel of the proof that the Bussell and Erwin Company knew nothing of the terms of this instrument, and were therefore not bound thereby unless they chose to accept the same. It is also the fact that the Bussell and Erwin Company were the parties who sold all the goods manufactured by the Douglas Manufacturing Company during this period, and that at the end of this enterprise they and the defendant Flint received by conveyance from Brough the whole of the property in question. Brough was carrying on this business, and the Russell and Erwin Company were his sales agents. The Russell & Erwin Company knew that for the production of the merchandise which they sold as the agents of this enterprise, raw material was necessarily required, and that if they did not furnish it, somebody else must be furnishing it upon the credit of the enterprise. It would, therefore, seem apparent that the enterprise there conducted should be required to pay the expenses and indebtedness incurred in the running of the business before the property could be applied to the payment of claims existing at the time of the commencement hereof. The plaintiffs in this action, therefore, having supplied the material for the conduct of this business had a right to claim that the property represented by the enterprise in question should be applied to the payment óf their debt, such debt being a part of the obligations arising from the conduct of the business, before the property could be applied to the payment of debts which did not arise from the prosecution of the business claimed to have been conducted under the trust deed. It is immaterial, so far as the result is concerned, whether such indebtedness be considered as-part of the expenses of the business, as mentioned in the-trust deed, or whether the rights of the plaintiffs are to be enforced simply as creditors of the enterprise. The result would be precisely the same, as they would be entitled to be paid for the merchandise furnished by them, before the capital used in the enterprise should be applied to the payment of any debts not arising out of the business.

The next question to be considered arises upon the objections taken to the report of the referee.

The issue which was referred to the referee to hear and determine, was that which arose by the answers of the defendants claiming that the steel referred to, and which formed the subject matter of the plaintiff’s claim in this action, was defective and bad in quaiity. After a long trial of these issues before the referees,-extending from June, 18J8, to June, 1885, and after the taking of a large mass of testimony, the learned referees came to the conclusion that the defendants had failed to show that the steel was defective and of bad quality and not worth the amount claimed by the plaintiffs. The evidence upon this point was conflicting, and unless good reasons have been shown, the conclusions arrived at by the learned referees ought not to be disturbed.

The principal ground upon which the conclusion of the. referees has been attacked is the statement in their opinion that the defendants’ case was made so strong that it disproved itself; and some dissatisfaction seems to have been. expressed by the learned counsel in that the referees failed to properly characterize the testimony offered upon the part of the defendants. It may be that the learned referees have dealt too leniently with some of the testimony offered upon the part of the defendants; but the grounds upon which that testimony seems to have been discredited, are apparently well founded.

The learned referees suggest that the proof upon which the defendants rehed to establish their defense consisted of three classes:

First. The test, by chemical analysis, of bars of steel, which, it was claimed, were specimens of the steel furnished by the plaintiffs to the works.

Secondly. Practical tests m working bars of steel, claimed to be part of that furnished by the plaintiffs to the works, by experienced workmen, and

Thirdly. The testimony of the superintendents and employees at the works as to the manner in which the steel acted in working it up into tools, and the waste and loss occasioned by breakage or the development of defects fatal to the quality of the tools m the course of manufacture. It is conceded that the evidence produced on the part of the defense to sustain their defense if it were credited, and if full effect were given it, would wipe out the whole of the plaintiffs’ present claim, and show that the loss which the business must have sustained on account of the defects in the steel exceeded, by a considerable sum, the amount claimed by the plaintiffs m this action.

In the consideration of this question the learned referees considered the conceded facts and the written evidence to-be of greater weight than oral testimony given a considerable time after the happening of the events in question. There was a correspondence going on between the plaintiffs and the parties using and manufacturing the steel in question, at the works conducted by Brough, during the whole period in which this steel was being furnished.

James Swann, the superintendent at Seymour, testified, upon behalf of the defendants, that the character of the steel was not suitable for their business, and that it was not-uniform in temper, and that the loss which previously had not been more than three, and sometimes did not average more than one per cent, became twenty-five per cent when the Gautier steel was used. This witness, we find, on the 3d of March, 1873, writing to the plaintiffs' that the steel worked well so far; and on the sixth of March to the same effect; on the twenty-seventh of March to the same effect; on the nineteenth of April to the same effect, and on the ninth of June he says: “ The steel for tools works very well so far as we have tried.”

On the nineteenth of July he gives an order for steel the same as we have had. On the thirtieth of October Swann wrote complaining of some steel which had been sent, and on the tenth of November, in answer to that letter, Mr. Charles Douglas, who had charge of this business for the plaintiffs, wrote: “ It is the first complaint we have had of the kind ” and as all the steel you have had for farriers from.the first has been made from the same stock and in the same manner, we are at a loss to account for the trouble. ” Swann does not seem to have made any further complaint, and on the 9th of June, 1874, he writes to the plaintiffs an order: “Please send the same quality of steel .as last, as soon as you can.”

. Letters were also produced written by Mr Eddy commending the quality of the steel in August, 1873, after there had been twenty-four or twenty-five tons of such steel delivered. He says, “we find by working it that the tools prove, to be of excellent quality. The tool will stand as severe a test as any made from any other steel we have ever used. The steel requires a little more care in heating. There is also less loss of stock from cracking of tools in hardening than when we used Ferths steel.” In another letter as late as February, 1874, he orders from the plaintiff “steel of the same quality as the former steel.” This correspondence went on during the whole course of the business, and the learned referees well say that it appears from this correspondence that the manufacturers went on from month to month and week to week during this period ordering this steel for the works in apparent ignorance that it was "wholly unfit for the purposes for which it was designed.

The referees came to the conclusion, and it would appear justly so, that this approval of the steel by the manufacturers using it during the course of their manufacture was entitled to greater weight than oral testimony given by workmen where opportunity for cross-examination was not had, and where in some instances such testimony was totally inconsistent with the letters produced, written by the witnesses themselves.

There is another pregnant fact and that is, that over $300,000 worth of manufactured tools per year were received by the Russel & Erwin Company for sale, .and there is no proof going to show that any large amount of those tools were ever returned by purchasers. There is some general evidence given upon this point, but it is not specific and seems to be entirely unreliable. It appears from the testimony of the witness McLaughlin, that in the matter of chisels the quantity at invoice price received from this enterprise was certainly $60,000 worth and the whole remaining on hand was less than $300 worth. The learned referees rightly considered testimony of this character entitled to greater weight than the evidence of workmen showing the steel to be of such bad quality that it was impossible that any great part of it could ever have been marketable.

The test by chemical analysis tended to show that the steel was of a very inferior character, and totally unfit for the manufacture of marketable tools. These tests were made two years after the period at which the steel was furnished, and while the works were in the chaige of the defendants; and the referees concluded from the facts hereinbefore set forth that it was impossible that the steel tested by chemical analysis could have been fair samples of the steel furnished by the plaintiffs to the works. In support of that finding, we find from the testimony of the witness Cullen that the scrap steel used at these manufacturies was, in February, 1876, all mixed together, and that one kind could not be distinguished from another. The witness Clearwater also testified that in the early part of the year 1876 various kinds of steel were all put together, including the Gautier steel, Black Diamond, and Ferths. And it appears that it was from this pile of steel that the samples were taken for the purposes of the chemical analysis.

It is true that the witnesses upon the part of the defendants swear that the steel which was experimented upon was Gautier steel, and that there was no other steel in the building. But the question as to whether the steel experimented upon was a fair sample of the Gautier steel was to be determined by the learned referees upon this conflict of evidence; and it would seem that the conceded facts in regard to the sales of manufactured goods, and the continuance of the orders for the steel without complaint, in con nection with the testimony of Clearwater and Cullen, were sufficient to justify them in coming to the conclusion that there was some error committed in selecting the steel which was subjected to chemical analysis.

It is claimed that the testimony of defendants’ witnesses in regard to the identity of the steel was of such a character that the referees were bound in law to accept it as true; and authorities are cited, where witnesses are unimpeached and the facts sworn to by them uncontradicted, either directly or indirectly by other witnesses, neither a court nor a jury can in the exercise of a sound discretion, disregard their testimony. The fact that the witnesses in question have been contradicted both by oral and written testimony seems to have been entirely overlooked in the submission of this proposition.

We are of opinion, therefore, that the referees had ample evidence on which to found their conclusions; and that instead of such conclusions being against the weight of evidence as presented by this record, they seem to be in harmony with the preponderance of proof.-

The judgment and order appealed from should therefore be affirmed.

Brady and Daniels, JJ., concur.